Exhibit 10.3


 


PROFESSIONAL
SERVICES AGREEMENT


 


THIS PROFESSIONAL
SERVICES AGREEMENT is entered into as of August 4,  2009, and shall be effective as of
January 1, 2010, (the “Effective Date”) by and between DISH Network
Corporation, a Nevada corporation (“DISH”), and Echostar Corporation, a
Nevada corporation (the “Company”).


 


WHEREAS, the Board of
Directors of DISH determined that it was appropriate and desirable to separate
DISH and the Company into two publicly-traded companies by separating from DISH
and transferring to the Company DISH’s non-consumer related businesses and
related assets and liabilities (the “Separation”);


 


WHEREAS, DISH and the
Company entered into that certain Separation Agreement, dated as of December 31,
2007 (the “Separation
Agreement”), in order to carry out, effect and consummate the Separation;


 


WHEREAS, to DISH and the
Company entered into that certain Transition Services  Agreement, dated as of December 31,
2007 (the “Transition
Services Agreement”), pursuant to which 
DISH provides certain services to the Company;


 


WHEREAS, DISH and the
Company entered into that certain Services 
Agreement, dated as of December 31, 2007 (the “Services Agreement”),
pursuant to which the Company provides certain services to DISH;


 


WHEREAS, DISH and the
Company entered into that certain Satellite Procurement  Agreement, dated as of December 31,
2007 (the “Satellite
Procurement Agreement”), pursuant to which 
the Company provides certain services to DISH; and


 


WHEREAS, DISH and the
Company deem it to be appropriate and in the best interests of DISH and the
Company to continue to provide and receive certain services previously provided
under the Transition Services Agreement, the Services Agreement and the
Satellite Procurement Agreement pursuant to the terms and conditions set forth
herein.


 


NOW,
THEREFORE, in consideration of the mutual promises, covenants, agreements,
representations and warranties contained herein, and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree, intending to be legally bound,
as follows:


 


ARTICLE I


 


Definitions


 


Section 1.1  Definitions.  Unless
otherwise defined herein, each capitalized term shall have the meaning
specified for such term in the Separation Agreement.  As used in this Agreement:


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


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(a)           “Agreement” means this
Professional Services Agreement, the provisions of the Separation Agreement
referenced herein and all Schedules attached hereto and incorporated herein by
this reference and all amendments, modifications and changes hereto and
thereto.


 


(b)           “Company  Indemnified Parties” means the
Company  and its Affiliates and each of
their respective present and former directors, managers, or persons acting in a
similar capacity, officers, employees, agents, consultants, or other
representatives and each of the heirs, executors, successors and assigns of any
of the foregoing.


 


(c)           “Company Systems” means any
computer software program or routine or part thereof owned, licensed or
provided by or for the Company or any of its Subsidiaries which is used by the
Company or any of its Subsidiaries or their suppliers on behalf of the Company
or any of its Subsidiaries, each as modified, maintained or enhanced from time
to time by the Company  or any of its
Subsidiaries, DISH or any of its Subsidiaries or any Third Party.


 


(d)           “Cost” means the
fully-burdened cost incurred by a party and its Affiliates to provide
or procure the Services.  For purposes of this definition, the
fully-burdened cost includes without limitation: (i) the costs of any
materials or fees paid to third party consultants or advisers used in the provision
or procurement of the Services; (ii) shipping costs; (iii) the
salary, benefits (if any) (including without limitation, medical plans and 401(k) or
other retirement plans), employment taxes (if any) of all employees of a party
and its Affiliates involved in the provision or procurement of the
Services; (iv) related overhead expenses (including without limitation
cost of facilities and utilities costs, insurance, and the cost of all general
support, operational and business services); (v) any and all licensing
fees paid or payable to Third Parties for any intellectual property
incorporated into the Services; and (vi) depreciation on any equipment or
assets involved in the provision or procurement of the Services.


 


(e)           “DISH Indemnified Parties”
means DISH and its Affiliates and each of their respective present and
former directors, managers, or persons acting in a similar capacity, officers,
employees, agents, consultants, or other representatives and each of the heirs,
executors, successors and assigns of any of the foregoing.


 


(f)            “DISH Systems” means any
computer software program or routine or part thereof owned, licensed or
provided by or for DISH or any of its Subsidiaries which is used by DISH or any
of its Subsidiaries or their suppliers on behalf DISH or any of its
Subsidiaries, each as modified, maintained or enhanced from time to time by
DISH or any of its Subsidiaries or any Third Party.


 


(g)           “Expenses” means any and all
expenses incurred in connection with investigating, defending or asserting any
claim, action, suit or proceeding incident to any matter indemnified against
hereunder (including court filing fees, court costs, arbitration fees or costs,
witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, consultants, accountants and other
professionals).


 


(h)           Reserved.


 






***Certain confidential portions of this exhibit were omitted by means
of redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and Exchange
Commission subject to a request for confidential treatment pursuant to Rule
24b-2 under the Securities Exchange Act.


 


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(i)            “Providing Party”
means the party providing Services pursuant to the terms of this Agreement.


 


(j)            “Receiving Party” means the party receiving
Services pursuant to the terms of this Agreement.


 


(k)           “Services” means either the
DISH Services or the Company Services.


 


(l)            “Systems” means the DISH Systems
or the Company Systems, individually, or the DISH Systems and the Company
Systems, collectively, as the context may indicate.


 


(m)          “Third Party” means a Person
that is not an Affiliate of any party hereto.


 


Section 1.2  Interpretation.  (a) 
In this Agreement, unless the context clearly indicates otherwise:


 


(i)            words
used in the singular include the plural and words used in the plural include
the singular;


 


(ii)           references
to any Person include such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Agreement, and a
reference to such Person’s “Affiliates” shall be deemed to mean such Person’s
Affiliates following the Distribution; provided that for purposes of this
Agreement DISH and the Company shall not be considered Affiliates;


 


(iii)          references
to any gender includes the other gender;


 


(iv)          the
words “include,” “includes” and “including” shall be deemed to be followed by
the words “without limitation”;


 


(v)           references
to any Article, Section or Schedule means such Article or Section of,
or such Schedule to, this Agreement, as the case may be, and references in any Section or
definition to any clause means such clause of such Section or definition;


 


(vi)          the
words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import
shall be deemed references to this Agreement as a whole and not to any
particular Section or other provision hereof;


 


(vii)         references
to any agreement, instrument or other document means such agreement, instrument
or other document as amended, supplemented and modified from time to time to
the extent permitted by the provisions thereof and by this Agreement;


 


(viii)        references
to any Applicable Law (including statutes and ordinances) means such law
(including all rules and regulations promulgated thereunder) as amended,
modified, codified 


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


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or
reenacted, in whole or in part, and in effect at the time of determining
compliance or applicability;


 


(ix)           relative
to the determination of any period of time, “from” means “from and including,” “to”
means “to but excluding” and “through” means “through and including”;


 


(x)            accounting
terms used herein shall have the meanings historically ascribed to them by DISH
and its Subsidiaries, including the Company, in its and their internal
accounting and financial policies and procedures in effect prior to the date of
the Separation;


 


(xi)           if
there is any conflict between the provisions of the Separation Agreement and
this Agreement, the provisions of this Agreement shall control with respect to
the subject matter hereof;


 


(xii)          the
titles to Articles and headings of Sections contained in this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of or to affect the meaning or interpretation of this Agreement;


 


(xiii)         any
portion of this Agreement obligating a party hereto to take any action or
refrain from taking any action, as the case may be, shall mean that such party
shall also be obligated to cause its relevant Affiliates to take such action or
refrain from taking such action, as the case may be (and, accordingly, if
Services are provided by Affiliates of DISH or the Company, references to “DISH”
or “the Company” shall be deemed to be references to such Affiliate which shall
provide the Services under this Agreement; and


 


(xiv)        unless
otherwise specified in this Agreement, all references to dollar amounts herein
shall be in respect of lawful currency of the United States.


 


ARTICLE II


 


Performance of Services


 


Section 2.1  Description
of the Services Provided by DISH.  Following the
Effective Date, DISH shall provide, or cause to be provided, the following
services (collectively, the “DISH Services”) to the Company in support
of its businesses:


 


(a)           Reserved.


 


(b)           IT Services.  DISH or its designee shall provide each of
the IT services specified in Schedule 2.1.2 (the “IT Services”) to the Company or its Subsidiaries, in
accordance with the terms and conditions for such IT Services listed on Schedule 2.1.2.


 


(c)           Travel and Event Coordination
Services.  DISH or its designee shall
provide each of the travel and events coordination services specified in Schedule 2.1.3 (the “Travel and Event Coordination Services”) to the Company or
its Subsidiaries, in accordance with the terms and conditions for such Travel
and Event Coordination Services listed on Schedule 2.1.3.


 






***Certain confidential portions of this exhibit
were omitted by means of redacting a portion of the text. Copies of the exhibit
containing the redacted portions have been filed separately with the Securities
and Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.


 


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(d)           Reserved.


 


(e)           Internal Audit Services.  DISH or its designee shall provide each of
the internal audit and corporate quality services specified in Schedule 2.1.5 (the “Internal Audit Services”) to the Company or its
Subsidiaries, in accordance with the terms and conditions for such Internal
Audit Services listed on Schedule 2.1.5.


 


(f)            Legal Services.  DISH or its designee shall provide each of
the legal services specified in Schedule 2.1.6 (the “Legal Services”) to the Company or its Subsidiaries, in
accordance with the terms and conditions for such Legal Services listed on Schedule 2.1.6.


 


(g)           Accounting and Tax Services.  DISH or its designee shall provide each of
the accounting and tax services specified in Schedule 2.1.7 (the “Accounting and Tax Services”) to the Company or its
Subsidiaries, in accordance with the terms and conditions for such Accounting
and Tax Services listed on Schedule 2.1.7.


 


(h)           Benefits Administration.  DISH or its designee shall provide each of
the benefits administration services specified in Schedule 2.1.8 (the “Benefits Administration Services”) to the Company or its
Subsidiaries, in accordance with the terms and conditions for such Benefits
Administration Services listed on Schedule 2.1.8.


 


(i)            Chairman’s Group.  DISH or its designee shall provide each of
the chairman’s group services specified in Schedule 2.1.9 (the “Chairman’s Group Services”) to the Company or its
Subsidiaries, in accordance with the terms and conditions for such Chairman’s
Group Services listed on Schedule 2.1.9.


 


(j)            Non-Cash Compensation.  DISH or its designee shall provide each of
the non-cash compensation services specified in Schedule 2.1.10 (the “Non-Cash Compensation Services”) to the 


 






***Certain confidential portions of this
exhibit were omitted by means of redacting a portion of the text. Copies of the
exhibit containing the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act.


 


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Company or its
Subsidiaries, in accordance with the terms and conditions for such Non-Cash
Compensation Services listed on Schedule 2.1.10.


 


(k)           Programming Acquisition Services.  DISH or its designee shall provide each of
the programming acquisition services specified in Schedule 2.1.11 (the “Programming Acquisition Services”) to the Company or its
Subsidiaries, in accordance with the terms and conditions for such Programming
Acquisition Services listed on Schedule 2.1.11.


 


(l)            Other
Services:  To the extent fees for a
specific Service are not provided in  Schedule 2.1.1 through Schedule
2.1.11 or the Company desires to receive certain other Services as mutually
agreed upon between DISH and the Company, including without limitation those
services which were provided to the Company pursuant to the Transition Services
Agreement, then DISH or its designee shall
provide such Service  in accordance with
the terms and conditions listed on Schedule 2.1.12.


 


(m)          Consulting
Services.  DISH shall occasionally act in a consulting
function on certain services which were previously provided by DISH pursuant to
the Transition Services Agreement or which are terminated in accordance with Section 10.2
hereof in accordance with the terms and conditions listed on Schedule 2.1.13 (the “DISH
Consulting Services”).


 


Section 2.2  Description
of the Services Provided by the Company.  Following the
Effective Date, the Company shall provide, or cause to be provided, the
following services (collectively, the “the Company Services”) to DISH in
support of its businesses:


 


(a)           Logistics Services.  The Company or its designee shall provide
each of the logistics services specified in Schedule 2.2.1 (the “Logistics Services”) to DISH or its Subsidiaries, in
accordance with the terms and conditions for such Logistics Services listed on Schedule 2.2.1.


 


(b)           Procurement.  The Company or its designee shall provide
each of the procurement services specified in Schedule 2.2.2 (the “Procurement Services”) to DISH or its Subsidiaries, in
accordance with the terms and conditions for such Procurement Services listed
on Schedule 2.2.2.


 


(c)           Satellite Procurement.  The Company or its designee shall provide
each of the satellite procurement services specified in Schedule 2.2.3 (the “Satellite Procurement Services”) to DISH or its
Subsidiaries, in accordance with the terms and conditions for such Satellite
Procurement Services listed on Schedule 2.2.3.


 


(d)           Other
Services:  To the extent fees for a
specific Service are not provided in  Schedule 2.1.1 through Schedule
2.2.3 or DISH desires to receive certain other Services as mutually agreed
upon between DISH and the Company, including without limitation those services
which were provided to DISH pursuant to the Services Agreement or the Satellite
Procurement Agreement, then the Company or
its designee shall provide such Service  in
accordance with the terms and conditions listed on Schedule 2.2.4.


 


(e)           Consulting
Services.  The Company shall occasionally act in a
consulting function on certain services which were previously provided by the
Company pursuant to Services Agreement or 


 






***Certain confidential portions of this
exhibit were omitted by means of redacting a portion of the text. Copies of the
exhibit containing the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act.


 


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which are terminated in
accordance with Section 10.2 hereof in accordance with the terms and
conditions listed on Schedule 2.2.5 (the “DISH Consulting
Services”).


 


Section 2.3  Schedules
Update.  To the extent any Services are
mischaracterized in any of Schedule
2.1.1  through Schedule 2.2.4  (collectively, the “Service Schedules”),
DISH and the Company shall negotiate in good faith to amend such Service
Schedules as appropriate.


 


Section 2.4  Service
Levels.  With respect to Services that DISH or the
Company provided, or caused to be provided, to the other party prior to the
Distribution Date, DISH or the Company, as applicable, shall at all times
perform such Services (i) with at least the same degree of care, skill and
diligence with which DISH or the Company performs similar services for itself,
consistent with past practices, including, with respect to the type, quality
and timeliness of such Services, subject to variation in the provision of such
Services agreed to by the parties hereto, but, in no case may such degree of
care, skill and diligence be less than the degree of care, skill and diligence
with which DISH or the Company historically has performed such Services for the
benefit of the other party prior to the Distribution Date, (ii) with the
use of reasonable care, (iii) in material compliance with Applicable Laws
and (iv) with substantially the same priority under comparable circumstances
as it provides such services to itself and its Subsidiaries.


 


Section 2.5  Additional Services. 
If a party reasonably determines that additional services of the type
previously provided by one party or its designee to the other party prior to the
Distribution Date are necessary to conduct such party’s respective business and
such party or its Affiliates are not able to provide such service themselves
(each such service an “Additional Service”), then such party may provide
written notice thereof to the other party. 
Upon receipt of such notice by the second party, if the second party is
willing, in its sole discretion, to provide such Additional Service, the
parties hereto will negotiate in good faith an amendment to the Services
Schedules setting forth the Additional Service, the terms and conditions for
the provision of such Additional Service and the Fees (as defined below)
payable by the first party for such Additional Service, such Fees to be
determined on an arm’s-length basis and at fair market value.


 


Section 2.6  Third Party Services. 
Each party hereto acknowledges and agrees that certain of the Services
to be provided under this Agreement have been, and will continue to be,
provided (in accordance with this Agreement) to DISH or the Company, as
applicable, by Third Parties designated by DISH or the Company, as applicable,
as responsible for providing such Services. 
To the extent so provided, the Providing Party shall use commercially
reasonable efforts to (a) cause such Third Parties to provide such
Services under this Agreement and/or (b) enable the Receiving Party and
its Affiliates to avail itself of such Services; provided, however,
that if any such Third Party is unable or unwilling to provide any such
Services, the Providing Party shall use its commercially reasonable efforts to
determine the manner in which such Services can best be provided.


 


Section 2.7  Cost of Providing the Services. 
Unless otherwise expressly set forth in this Agreement, the Providing
Party shall bear all initial costs of providing the Services (including all
out-of-pocket and third-party expenses incurred by such party in order to
provide the Services).


 






***Certain confidential portions of this
exhibit were omitted by means of redacting a portion of the text. Copies of the
exhibit containing the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act.


 


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ARTICLE III


 


Service Disruptions


 


Section 3.1  Contingency Plans.  
The Providing Party agrees to use commercially reasonable efforts,
consistent with its practices for itself and its divisions and Affiliates, to
avoid any inability to provide the Services. 
In the event of a disaster, the Providing Party agrees to use the same
degree of care to restore the Services as such party would use to restore
similar services for itself and as provided in Section 3.3, but in
any event no less than commercially reasonable efforts.  In the event of scheduled downtime, the
Providing Party shall provide notice to the Company Contract Manager (as
defined below) or the DISH Contract Manager (as defined below), as applicable,
with as much notice as is reasonably possible under the circumstances.


 


Section 3.2 
Non-Performance.  (a) 
Except with respect to a Force Majeure Event (as defined below) which shall be
subject to Section 3.3, if the Providing Party’s, any of its
Affiliates’ or any Third Party’s performance of any Service is interrupted in
whole or in part for any reason for more than two (2) consecutive Business
Days (other than a Force Majeure Event), then the Receiving Party shall have
the right to make, at the Providing Party’s sole cost and expense, commercially
reasonable arrangements to procure such interrupted Services from an
alternative source at a cost no greater than the fair market value of such
interrupted Services for the period the Service is interrupted; provided,
that the Receiving Party shall provide prompt written notice to the Providing
Party’s Contract Manager setting forth in reasonable detail the terms and
conditions of the arrangements to procure such interrupted Services from an
alternative source.  For the avoidance of
doubt, the Receiving Party shall not be obligated to pay the Providing Party
for the interrupted Services during the period when such party is not providing
such Services.


 


Section 3.3  Force Majeure.  (a) 
If a party, any of
its Affiliates or any Third Party service provider is prevented from or delayed
in complying, either totally or in part, with any of the terms or provisions of
this Agreement by reason of fire, flood, storm, strike, walkout, lockout or
other labor trouble or shortage, delays by unaffiliated suppliers or carriers,
shortages of fuel, power, raw materials or components, any Applicable Law,
order, proclamation, regulation, ordinance, demand, seizure or requirement of
any Governmental Authority, riot, civil commotion, war, rebellion, acts of
terrorism, nuclear accident or other acts of God, or acts, omissions or delays
in acting by any governmental or military authority (a “Force Majeure Event”),
then upon notice to the Receiving Party, the affected provisions and/or other
requirements of this Agreement shall be suspended during the period of such
disability and, unless otherwise set forth herein to the contrary, the
Receiving Party shall have no liability to the Providing Party, its Affiliates,
any Third Party or any other Person in connection therewith.  The Providing Party shall use commercially
reasonable efforts to promptly remove such disability as soon as possible, but
in any event no later than 30 days after giving notice of such disability; provided,
however, that nothing in this Section 3.3 will be construed
to require the settlement of any strike, walkout, lockout or other labor
dispute on terms which, in the reasonable judgment of the Providing Party, are
contrary to its interest.  It is
understood that the settlement of a strike, walkout, lockout or other labor
dispute will be entirely within the discretion of the Providing Party.  If the Providing Party is unable to provide
any of the Services due to such a disability, each party hereto shall use
commercially reasonable efforts to cooperatively seek a solution that is
mutually satisfactory.


 






***Certain confidential portions of this
exhibit were omitted by means of redacting a portion of the text. Copies of the
exhibit containing the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act.


 


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(b)           Notwithstanding anything herein to the contrary, the
obligation of the
Providing Party to resume performance of
its obligations hereunder pursuant to this Section 3.3 shall
terminate and cease to be in effect to the extent and period that the Receiving Party has acquired such Services from an alternate source pursuant to this Section 3.3.  The Receiving Party
shall be free to acquire such Services from an alternate source, at such party’s
sole cost and expense, and without liability to the Providing Party,
for the period and to the extent reasonably necessitated by such
non-performance and during the continuation of any agreement entered into with
the provider of such Service, and for that period that such Service is provided
by an alternate source, the
Providing Party shall have no obligation
to provide such Service to the Receiving Party. 
For the avoidance of doubt, the Receiving Party
shall not be obligated to pay the Providing Party
for such Services during the period when the Providing Party
is not providing such Services.


 


(c)           Notwithstanding anything hereunder to the contrary, the
parties hereto agree that this Section 3.3 shall not be construed
so as to excuse a party hereto of its obligations to perform in accordance with
Article VII and Article VIII at all times during the
term of this Agreement.


 


Section 3.4  Recovery of Data. 
If the Providing Party loses or damages any of the Receiving Party’s data,
the Providing Party
shall use its best efforts to recover and re-process such data immediately
after discovery of such loss or damage. 
If the Providing Party is unable to re-process such data immediately, the Providing
Party shall notify
the Receiving Party
in writing of such loss or damage.


 


ARTICLE IV


 


Cooperation


 


Section 4.1  Cooperation.  During the
term of this Agreement, the Providing Party shall provide commercially reasonable cooperation to
the Receiving Party
by responding to the Receiving Party’s reasonable requests for information related to the
functionality or operation of the Services; provided, that such
requested information is related to the Separated Businesses and does not
require disclosure of any proprietary or confidential information of the Providing
Party or any of its
Affiliates.  Without limiting the
foregoing, the Providing Party shall provide the Receiving Party with (i) reasonable access (during
reasonable business hours) to records and the Providing Party employees related to the provision of
the Services and (ii) reasonable access (during reasonable business hours)
for the Receiving Party’s
employees and consultants to the Providing Party’s employees and facilities for the
purpose of training and consulting with respect to the Services; provided,
that such access shall not interfere with the day-to-day operations of the Providing
Party and its
Subsidiaries.


 


Section 4.2  Consents.  (a)  the Providing
Party shall, and
shall cause its Affiliates to, cooperate to obtain (i) all Consents for
any Third Party software or other Third Party intellectual property related to
the provision of the Services sufficient to enable the Providing
Party or its designee
to perform the Services in accordance with this Agreement and (ii) all
other Consents to allow the Providing Party to provide the Services and to allow the Receiving
Party to access and
use the Services (collectively, the “Required Consents”); provided,
however, that the Providing Party shall not be obligated under this Agreement to pay
any consideration, grant any concession or incur any Liability


 






***Certain confidential portions of this
exhibit were omitted by means of redacting a portion of the text. Copies of the
exhibit containing the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act.


 


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to any third Person to
obtain any such Required Consent.  Schedule
4.2 sets forth a list of all Required Consents and whether such Consents
have been obtained as of the date hereof.


 


(b)           In the event that any Required Consent is not obtained,
then, unless and until such Required Consent is obtained, the parties hereto
shall cooperate with each other in achieving a reasonable alternative
arrangement for the Receiving
Party to continue to process its work and for the Providing Party to perform such Services and in a manner which does not increase the
fees or costs payable by the Receiving Party hereunder.


 


Section 4.3  Primary Points of Contact for Agreement.


 


(a)           Appointment and Responsibilities.  Each party hereto shall appoint an individual
to act as the primary point of operational contact for the administration and
operation of this Agreement, as follows:


 


(i)            The
individual appointed by the Company as the primary point of operational contact
pursuant to this Section 4.3(a) (the “the Company Contract
Manager”) shall have overall responsibility for coordinating on behalf of
the Company all activities of the Company undertaken hereunder, for the
performance of the Company’s obligations hereunder, for coordinating the
performance of the Services with DISH, for acting as a day-to-day contact with
the DISH Contract Manager and for making available to DISH the data,
facilities, resources and other support services from the Company required for
DISH to be able to perform the Services in accordance with the terms of this
Agreement.  The Company may change the
Company Contract Manager from time to time upon written notice to DISH.


 


(ii)           The
individual appointed by DISH as the primary point of operational contact pursuant
to this Section 4.3(a) (the “DISH Contract Manager”)
shall have primary operational responsibility for coordinating on behalf of
DISH its joint activities with the Company under the Agreement and for DISH’s
performance of the Services, including all DISH personnel and other resources
used by DISH, and will serve as the day-to-day contact with the Company
Contract Manager.  DISH may change the
DISH Contract Manager from time to time upon written notice to the Company (the
Company Contract Manager and the DISH Contract Manager, collectively the “Contract
Managers”).


 


(b)           Review Meetings and Reports.  The Contract Managers shall meet at least
monthly to review the Performing Party’s performance of the Services as
required under this Agreement.  The
Performing Party’s Contract Manager shall provide to the parties hereto reports
on the parties’ respective performance, identifying any significant problems
that are unresolved and any details concerning their expected resolution.


 


Section 4.4  Steering Committee.


 


(a)           Size and Composition.  DISH
shall appoint two (2) members of its management staff and the Company
shall appoint two (2) members of its management staff to serve on a
steering committee (the “Steering Committee”). 
Either party hereto may change its Steering Committee members from time
to time upon written notice to the other party; provided, however,
that the DISH


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


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Contract Manager and the Company Contract
Manager shall at all times remain as members of the Steering Committee.  In addition, the parties hereto may mutually
agree to increase or decrease the size, purpose or composition of the Steering
Committee in an effort for the Providing Party to better provide, and
for the Receiving
Party to better utilize, the Services.


 


(b)           Responsibilities.  The
Steering Committee’s responsibilities include (i) generally overseeing the
performance of each party’s hereto obligations under this Agreement and (ii) assisting
in providing the Services by the Providing Party  and utilizing the
Services by the Receiving
Party.


 


Section 4.5  Meetings.   The Steering Committee shall meet once
a month or at such other frequency as mutually agreed by the parties hereto or
the members of the Steering Committee. 
Each Steering Committee meeting shall be at a mutually acceptable
location determined by the members of the Steering Committee.


 


Section 4.6  Dispute Resolution. 
The procedures for discussion and negotiation set forth in this Section 4.6
shall apply to all disputes, controversies or claims (whether arising in
contract, tort or otherwise) that may arise out of or relate to, or arise under
or in connection with this Agreement or the transactions contemplated hereby.


 


(a)           Primary Points of Contact.  It is the intent of the parties hereto to use
their respective reasonable best efforts to resolve expeditiously any dispute,
controversy or claim between them with respect to the matters covered hereby
that may arise from time to time on a mutually acceptable negotiated
basis.  In furtherance of the foregoing,
if a dispute arises, the Company Contract Manager and the DISH Contract Manager
shall consider the dispute for up to seven (7) Business Days following
receipt of a notice from either party hereto specifying the nature of the
dispute, during which time the Company Contract Manager and the DISH Contract
Manager shall meet in person at least once, and attempt to resolve the dispute.


 


(b)           Senior Management. 
If the dispute is not resolved by the end of the seven (7) day
period referred to in Section 4.6(a), or if the Company Contract
Manager and the DISH Contract Manager agree that the dispute shall not be
resolved by them, either party hereto may deliver a notice (an “Escalation
Notice”) demanding an in person meeting involving appropriate
representatives of the parties hereto at a senior level of management of the
parties hereto (or if the parties agree, of the appropriate strategic business
unit or division within such entity) (collectively, “Senior Executives”).  Thereupon, each of the Company Contract
Manager and the DISH Contract Manager shall promptly prepare a memorandum
stating (i) the issues in dispute and each party’s position thereon, (ii) a
summary of the evidence and arguments supporting each party’s positions
(attaching all relevant documents), (iii) a summary of the negotiations
that have taken place to date, and (iv) the name and title of the Senior
Executive who shall represent each party. 
The Company Contract Manager and the DISH Contract Manager shall deliver
such memorandum to its respective Senior Executive promptly upon receipt of
such memorandum from the DISH Contract Manager and the Company Contract
Manager, respectively.  The Senior
Executives shall meet for negotiations (which may be held telephonically) at a
mutually agreed time and place within 10 days of the Escalation Notice, and
thereafter as often as the Senior Executives deem reasonably necessary to
resolve the dispute.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


11

















 


(c)           Court Actions. 
In the event that any party, after complying with the provisions set
forth in Sections 4.6(a) and 4.6(b) and desires to
commence an action, such party may submit the dispute, controversy or claim (or
such series of related disputes, controversies or claims), subject to Section 12.2,
to any court of competent jurisdiction. 
Unless otherwise agreed in writing, the parties hereto shall continue to
provide service and honor all other commitments under this Agreement during the
course of dispute resolution pursuant to the provisions of this Section 4.6
with respect to all matters not subject to such dispute, controversy or claim.


 


ARTICLE V


 


Fees


 


Section 5.1  Fees.  The fees for
any of the Services are set forth in the “Cost Details” column in the
respective Service Schedule (the “Fees”).


 


Section 5.2  Taxes.  To the extent
required or permitted by Applicable Law, there shall be added to any Fees due
under this Agreement, and the Receiving Party agrees to pay to the Providing Party, amounts equal to any taxes, however
designated or levied, based upon such Fees, or upon this Agreement or the
Systems, Services or materials provided under this Agreement, or their use,
including state and local privilege or excise taxes based on gross revenue and
any taxes or amounts in lieu thereof paid or payable by the Receiving
Party.  In the event taxes are not added to an
invoice from the Providing Party, the Receiving Party shall be responsible to remit to the
appropriate tax jurisdiction any additional amounts due including tax, interest
and penalty.  If additional amounts are
determined to be due on the Services provided hereunder as a result of an audit
by a tax jurisdiction, the Receiving Party agrees to reimburse the Providing Party for the additional amounts due including
tax, interest and penalty.  The Providing
Party will be
responsible for penalty or interest associated with its failure to remit
invoiced taxes.  The parties hereto
further agree that no party hereto shall be required to pay any franchise
taxes, taxes based on the net income of the other party hereto or personal
property taxes on property owned or leased by a party hereto.


 


ARTICLE VI


 


Invoice and Payment; Audit


 


Section 6.1  Invoices and Payment. 
Within 20 days following the end of each month during the term of this
Agreement (or within 20 days after receipt of a Third Party supplier’s invoice
in the case of Services that are provided by a Third Party supplier), the Providing
Party will submit to
the Receiving Party
for payment a written statement of amounts due under this Agreement for such
month.  The Providing Party shall include with each invoice a
reasonably detailed description of the Services performed and the fees charged
and, if requested by the Receiving Party, will contain reasonably satisfactory documentation
in support of such amounts as specified therein and such other supporting
detail as the Receiving Party may reasonably require to validate such amounts due.


 


Section 6.2  Timing of Payment; No Offsets. 
The Receiving Party
will pay all undisputed amounts due pursuant to this Agreement within 60 days
after the date upon which each such statement that is required to be provided
hereunder is received by the Receiving Party.  The  


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


12

















 


Receiving
Party shall not
offset any amounts owing to it by the Providing Party or any of its Affiliates against amounts
payable by the Receiving Party hereunder or any other agreement or arrangement.


 


Section 6.3  Fees Dispute.  (a) 
In the event that the Receiving Party has a good faith dispute with regard to any Fees
invoiced by the Providing Party (the “Disputed Fee”), the Receiving
Party shall provide
the Providing Party
with written notice of such dispute (the “Fee Dispute Notice”), together
with a reasonably detailed explanation of such dispute, at the time payment
would have otherwise been due, and the Receiving Party may withhold payment of any Disputed Fee
pending resolution of the dispute.  For
the avoidance of doubt, the Receiving Party’s failure to pay the Disputed Fee in accordance with
this Section 6.3 shall not be grounds for a claim of breach or
suspension of work by the Providing Party.


 


(a)           In
the event that the parties hereto are unable to agree after reasonable
negotiation, in accordance with Sections 4.6(a) and 4.6(b),
upon the Disputed Fee, the parties hereto shall jointly select a qualified
unaffiliated independent third party to determine the fair value (the “Arbitrator”).  If the parties hereto are unable to agree on
an Arbitrator within 10 days of the receipt of a Fee Dispute Notice by the Providing Party, then there shall be an arbitral tribunal consisting of 3 neutral
arbitrators of (the “Tribunal”) whom each party hereto shall select one
within 10 days of the receipt of a Fee Dispute Notice by the Providing Party.  The two party-appointed
arbitrators shall select the third arbitrator within 10 days of the nomination
of the second arbitrator.  The
determination of the Arbitrator or Tribunal, as applicable, with respect to
such disagreement shall be completed within 30 days after the appointment of the Arbitrator or Tribunal, as
applicable and such determination shall be final and binding upon the parties
hereto.  The Arbitrator or Tribunal, as
applicable, shall adopt the position of either the Company or DISH with respect
to the Disputed Fees.  The fees, costs
and expenses of the Arbitrator or Tribunal, as applicable, selected in the
event of a dispute shall be paid by the party hereto who the Arbitrator or Tribunal,
as applicable, did not side with in its decision.


 


Section 6.4  Audit Rights.  (a) 
the Receiving Party
may audit (or cause an independent Third Party auditor to audit) the books,
records and facilities of the Providing Party to the extent necessary to determine the Providing
Party’s compliance
with this Agreement with respect to Fees paid or payable pursuant to this Article VI,
or the performance of its other obligations set forth in this Agreement.  For any given Service, the Receiving
Party shall have the
right to audit the books, records and facilities of the Providing
Party once for each
twelve month period during which payment obligations are due (and at such other
times as may be required by Applicable Law). 
The Receiving Party
shall also have the right to audit (or cause an independent Third Party auditor
to audit) the books, records and facilities of the Providing Party pertaining to a particular Service
within six months after the termination of such Service.


 


(b)           Any
audit shall be conducted during regular business hours and in a manner that
complies with the building and security requirements of the Providing Party.  Such audits shall not interfere
unreasonably with the operations of the Providing Party.  The Receiving Party
shall provide notice to the Providing
Party not less than 30 days prior to the
commencement of the audit and shall specify the date on which the audit will
commence.  The Receiving Party
conducting an audit shall pay the costs of conducting such audit, unless the
results of an audit reasonably indicate an overpayment by the Receiving Party of 10% or more (such percentage to be determined by reference to the
Services 


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


13

















 


which are subject to the specific audit), in
which case the Providing
Party shall pay the reasonable out-of-pocket costs
of the Receiving
Party.


 


ARTICLE VII


 


Independence; Ownership of Assets


 


Section 7.1  Independence. 
All employees and representatives of a party hereto and any of its
Affiliates will be deemed for purposes of all compensation and employee
benefits to be employees or representatives of such party or its Affiliates (or
its subcontractors) and not employees or representatives of the other party hereto
or any of the other party’s Affiliates. 
In providing the Services, the Providing Party’s employees and representatives will be
under the direction, control and supervision of the Providing Party or its Affiliates (or its
subcontractors), and not of the Receiving Party. 
The Providing Party
or its Affiliates (or its subcontractors) will have the sole right to exercise
all authority with respect to the employment (including termination of
employment), assignment and compensation of its employees and representatives.


 


Section 7.2  Ownership of Assets.


 


(a)           DISH Systems. 
The DISH Systems and any and all enhancements thereof or improvements
thereto are and shall remain the sole exclusive property of DISH, its
Subsidiaries and their suppliers, as the case may be.  From and after the creation of any and all
such DISH Systems or enhancements thereof or improvements thereto by the
Company or by any contractor, Affiliate or other Third Party on the Company’s
behalf, in each case, pursuant to this Agreement, the Company shall cause to be
assigned and hereby assigns to DISH or the applicable Subsidiary, any and all
right, title and interest that the Company or such contractor, Affiliate or
Third Party may have in such DISH Systems or enhancements thereof or improvements
thereto.


 


(b)           Company Systems. 
The Company Systems and any and all enhancements thereof or improvements
thereto are and shall remain the sole exclusive property of the Company, its
Subsidiaries and their suppliers, as the case may be.  From and after the creation of any and all
such Company Systems or enhancements thereof or improvements thereto by DISH or
by any contractor, Affiliate or other Third Party on DISH’s behalf, in each
case, pursuant to this Agreement, DISH shall cause to be assigned and hereby
assigns to the Company or the applicable Subsidiary, any and all right, title
and interest that DISH or such contractor, Affiliate or Third Party may have in
such Company Systems or enhancements thereof or improvements thereto.


 


(c)           License. 
During the term of this Agreement, each party hereto grants to the other
party and such party’s respective suppliers a non-exclusive, royalty-free right
and license to use the DISH Systems or the Company Systems, as applicable,
solely to provide the Services or use the Services contemplated hereunder.  Notwithstanding anything to the contrary
hereunder, each party hereto agrees to cooperate with the other (and shall
cause its suppliers to so cooperate) to cause the orderly return of the other
party’s Systems and property upon the termination of this Agreement or upon
written request, whichever is earlier.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


14

















 


(d)           Data Ownership. 
As between DISH and its Subsidiaries, on the one hand, and the Company
and its Subsidiaries, on the other hand, all right, title and interest in and
to all data processed hereunder shall be owned exclusively by DISH
or its applicable Subsidiary or the Company or its applicable Subsidiary that
originally supplied it to the other. 
DISH and the Company hereby assign to the other, and shall cause any of
its or their contractors, Affiliates or suppliers to assign to the other, as
applicable, all right, title and interest that DISH or the Company, as
applicable, may have in the other’s data.


 


(e)           Third Party Suppliers.  The Providing Party
shall have written agreements with its employees consistent with past
practices, and shall cause any contractor, Affiliate or Third Party performing
Services on its behalf pursuant to this Agreement to also have written
agreements with its employees that are consistent with its obligations
hereunder, including the obligations to disclose and assign all right, title
and interest in intellectual property rights as contemplated in this Section 7.2.  The Providing Party  agrees not to
voluntarily terminate or to amend or modify such agreements with respect to the
provisions described above without providing at least 30 days prior written
notice thereof and further agrees that any such amendments or modifications to
such agreements shall be prospective only.


 


Section 7.3  Other Assets. 
Except as otherwise noted in Sections 7.1 and 7.2, all
procedures, methods, systems, strategies, tools, equipment, facilities and
other resources used by a party hereto, any of its Affiliates or any Third
Party service provider shall remain the property of such party, its Affiliates
or such service providers and, except as otherwise provided herein, shall at
all times be under the sole direction and control of such party, its Affiliates
or such Third Party service provider.


 


ARTICLE VIII


 


Confidentiality


 


Section 8.1  Confidentiality. 
Each party hereto agrees that the specific terms and conditions of this Agreement
and any information conveyed or otherwise received by or on behalf of a party
hereto in conjunction herewith are confidential and are subject to the terms of
the confidentiality provisions set forth in Section 4.5 of the Separation
Agreement.


 


ARTICLE IX


 


No Agency Relationship


 


Section 9.1  No Agency Relationship. 
The Providing Party,
in performance of this Agreement, is acting as an independent contractor to the Receiving
Party, and not as a
partner, joint venturer or agent, nor do the parties hereto intend to create by
this Agreement an employer-employee relationship.  Neither party hereto shall be bound by any
representation, act or omission of the other party hereto.  Neither party hereto has any right, power or
authority to create any obligation, express or implied, on behalf of the other
party hereto.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


15

















 


ARTICLE X


 


Term and Termination


 


Section 10.1  Term.


 


(a)           Term of Agreement.  This Agreement shall commence on the
Effective Date and shall end on the earliest of: (i) one year from the
Effective Date; provided that this Agreement shall automatically renew for
indefinite successive one year periods unless either party provides notice of
its desire not to renew the term of this Agreement at least sixty (60) days
prior to the then current end of the term; (ii) the date all Services have
been terminated in accordance with the terms of this Agreement; or (iii) the
date of a termination for convenience in accordance with Section 10.2(b).


 


(b)           Term of Services. 
The Providing
Party shall provide each Service beginning on the
Effective Date, or as otherwise set forth in the Service Schedules or agreed to
by the parties hereto in writing, and shall continue to provide such Service
until as otherwise agreed to by the parties hereto in writing, unless sooner
terminated in accordance with the provisions of the Agreement.


 


Section 10.2  Termination.


 


(a)           Termination of Services.  The Receiving Party
may terminate its right to receive any particular Service for any or no reason
by providing the Providing Party
not less than 30 days prior written notice (the “Termination Notice”)
setting forth in reasonable detail the Services to be terminated (the “Terminated
Services”) and the termination date (the “Termination Date”) for
each Terminated Service that shall not be less than 30 days from the receipt of
the Termination Notice by the second party. 
Beginning on such Termination Date, the Receiving Party shall not be
obligated to pay any Fees in connection with such Terminated Services other
than Fees owed by the Terminating Party to the Providing Party for such Terminated Services prior to the Termination Date.  The Receiving Party shall, as soon as
practicable but no later than 10 Business Days after the Receiving Party
realizes that a Service is no longer required by the Receiving Party and to be
provided pursuant to the Agreement, deliver a Termination Notice with respect
to such Service in accordance with Section 10.2(a).


 


(b)           Termination for Convenience.  Either party may terminate this Agreement for
any or no reason by providing the other party not less than 60 days prior
written notice setting forth the termination date for this Agreement.


 


(c)           Termination for Breach.  If a party hereto materially breaches any of
its obligations under this Agreement, and does not cure such default within 30
days after receiving written notice thereof from the non-breaching party, then
the non-breaching party may, at its option, terminate any Service affected by
such breach or this Agreement in its entirety by providing written notice of
termination to the breaching party, which termination shall be effective
immediately upon receipt of such termination notice.


 


(d)           Bankruptcy Termination.  This Agreement may be terminated by either
party hereto upon at least 30 days prior written notice if the other party
hereto is declared insolvent or 


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


16

















 


bankrupt, or makes an assignment for the
benefit of creditors, or a receiver is appointed or any proceeding is demanded
by, for or against the other under any provision of the Federal Bankruptcy
Act.  Any termination of this Agreement
shall be without prejudice to any rights or obligations of the parties hereto
accruing prior to such termination including the right to payment of unpaid amounts
owing for services performed prior to termination.


 


(e)           Termination for Illegal Agreement.  If there shall be any Applicable Law that
makes any or all of the transactions contemplated by this Agreement, illegal or
otherwise prohibited or if any order of any competent authority prohibiting such
transactions is entered and such order shall become final and non-appealable,
then either party hereto may terminate any Service affected by such Applicable
Law or order by providing written notice of termination to the other party
hereto, which termination shall be effective immediately upon receipt of such
termination notice.


 


Section 10.3  Procedures on Termination. 
Following any termination of this Agreement in whole or in part, each
party hereto will cooperate with the other party as reasonably necessary to
avoid disruption of the ordinary course of the other party’s and its Affiliates’
businesses.  Termination shall not affect
any right to payment for Services provided prior to termination.


 


Section 10.4  Effect of Termination.  Sections
4.3 and Articles V and VI (with respect to Fees and Taxes
attributable to periods prior to termination), 7.2(a), 7.2(b), 7.2(d),
10.3, this Section 10.4 and Articles VII, VIII,
XI and XII shall survive any termination of this Agreement.  For the avoidance of doubt, termination of a
particular Service hereunder shall be a termination of this Agreement.


 


ARTICLE XI


 


Indemnification


 


Section 11.1  Indemnification by the Company. 
The Company shall indemnify, defend and hold harmless the DISH
Indemnified Parties for any Losses and Expenses incurred by them in connection
with or arising out of (i) any breach of this Agreement by the Company,
its Affiliates, employees, suppliers or contractors, (ii) any bodily
injury or damage to property occasioned by the acts or omissions of the
Company, its Affiliates, employees, suppliers or contractors, (iii) the
Company’s, its Affiliates’, employees’, suppliers’ or contractors’ gross
negligence, willful misconduct or bad faith in the provision of the Company
Services by the Company, its Affiliates, employees, suppliers or contractors
pursuant to this Agreement, (iv) any Action that determines that the
provision by the Company and/or the receipt by the DISH Indemnified Parties of
any the Company Services infringes upon or misappropriates the intellectual
property of any Third Party to the extent that any such Losses and Expenses are
determined to have resulted from the Company’s, its Affiliates’, employees’,
suppliers’ or contractors’ gross negligence, willful misconduct or bad faith, and
(v) Third Party claims arising out of the provision of the Company
Services, except to the extent that such Losses and Expenses are finally
determined by a final non-appealable decision of a court having jurisdiction
over DISH and the Company to have arisen out of the material breach of this
Agreement, gross negligence, bad faith or willful misconduct of DISH, its
Affiliates, employees, suppliers or contractors in providing DISH Services.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act.


 


17

















 


Section 11.2  Indemnification by DISH. 
DISH shall indemnify, defend and hold harmless the Company Indemnified
Parties for any Losses and Expenses incurred by them in connection with or
arising out of (i) any breach of this Agreement by DISH, its Affiliates,
employees, suppliers or contractors, (ii) any bodily injury or damage to
property occasioned by the acts or omissions of DISH, its Affiliates,
employees, suppliers or contractors, (iii) DISH’s, its Affiliates’,
employees’, suppliers’ or contractors’ gross negligence, willful misconduct or
bad faith in the provision of the DISH Services by DISH, its Affiliates,
employees, suppliers or contractors pursuant to this Agreement, (iv) any Action
that determines that the provision by DISH and/or the receipt by the Company
Indemnified Parties of any DISH Services infringes upon or misappropriates the
intellectual property of any Third Party to the extent that any such Losses and
Expenses are determined to have resulted from DISH’s, its Affiliates’,
employees’, suppliers’ or contractors’ gross negligence, willful misconduct or
bad faith, and (v) Third Party claims arising out of the provision of the
Company Services, except to the extent that such Losses and Expenses are
finally determined by a final non-appealable decision of a court having
jurisdiction over DISH and the Company to have arisen out of the material
breach of this Agreement, gross negligence, bad faith or willful misconduct of
the Company, its Affiliates, employees, suppliers or contractors in providing
the Company Services.


 


Section 11.3  Limitations and Liability. 
Each party hereto shall have a duty to mitigate the Losses and Expenses
for which the other is responsible hereunder. 
EXCEPT FOR CLAIMS ARISING OUT OF OR RELATING TO ARTICLE VIII,
IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL (INCLUDING LOSS OF REVENUES OR PROFITS), EXEMPLARY OR PUNITIVE
DAMAGES OR THE LIKE ARISING UNDER ANY LEGAL OR EQUITABLE THEORY OR ARISING
UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR THE PROVISION OF SERVICES
HEREUNDER), ALL OF WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES
REGARDLESS OF WHETHER OR NOT ANY PARTY TO THIS AGREEMENT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.


 


Section 11.4  Indemnification is Exclusive Remedy. 
The indemnification provisions of this Article XI shall be
the exclusive remedy for breach of this Agreement.


 


Section 11.5  Risk Allocation. 
Each party hereto agrees that the Fees charged under this Agreement
reflect the allocation of risk between the parties hereto, including the
limitations on liability in Section 11.3.  Modifying the allocation of risk from what is
stated here would affect the Fees that each party hereto charges, and in
consideration of those Fees, each party hereto agrees to the stated allocation
of risk.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


18

















 


Section 11.6  Indemnification Procedures. 
All claims for indemnification pursuant to this Article XI
shall be made in accordance with the provisions set forth in Sections 5.6
and 5.7 of the Separation Agreement.


 


ARTICLE XII


 


Miscellaneous


 


Section 12.1  Entire Agreement. 
This Agreement, including the Schedules hereto and the sections of the
Separation Agreement referenced herein, constitutes the entire agreement
between the parties hereto with respect to the subject matter contained herein,
and supersedes all prior agreements, negotiations, discussions, understandings,
writings and commitments between the parties hereto with respect to such
subject matter.  For the avoidance of
doubt, each party hereto agrees that all Services provided as of the Effective
Date shall be provided under the terms and conditions of this Agreement and
shall no longer be provided under the Transition Services Agreement, the
Services Agreement or the Satellite Procurement Agreement, as applicable.


 


Section 12.2  Governing Law; Service of
Process; Jurisdiction.  This Agreement and the legal
relations between the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws rules thereof to the extent such rules would require
the application of the law of another jurisdiction.  The state or federal courts located within
the City of New York shall have exclusive jurisdiction over any and all
disputes between the parties hereto, whether in law or equity, arising out of or
relating to this Agreement and the agreements, instruments and documents
contemplated hereby and the parties hereto consent to and agree to submit to
the exclusive jurisdiction of such courts. 
Each of the parties hereto hereby waives and agrees not to assert in any
such dispute, to the fullest extent permitted by Applicable Law, any claim that
(i) such party is not personally subject to the jurisdiction of such
courts, (ii) such party and such party’s property is immune from any legal
process issued by such courts or (iii) any litigation or other proceeding
commenced in such courts is brought in an inconvenient forum.  The parties hereto hereby agree that mailing
of process or other papers in connection with any such action or proceeding in
the manner provided in Section 12.10, or in such other manner as
may be permitted by Applicable Law, shall be valid and sufficient service
thereof and hereby waive any objections to service accomplished in the manner
herein provided.


 


Section 12.3  Waiver of Jury Trial. 
EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY
IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a portion
of the text. Copies of the exhibit containing the redacted portions have been
filed separately with the Securities and Exchange Commission subject to a
request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act.


 


19

















 


Section 12.4  Amendment.  This
Agreement shall not be amended, modified or supplemented except by a written
instrument signed by an authorized representative of each of DISH and the
Company.


 


Section 12.5  Waiver.  Any term or
provision of this Agreement may be waived, or the time for its performance may
be extended, by the party or the parties hereto entitled to the benefit
thereof.  Any such waiver shall be
validly and sufficiently given for the purposes of this Agreement if, as to any
party hereto, it is in writing signed by an authorized representative of such
party.  The failure of any party hereto
to enforce at any time any provision of this Agreement shall not be construed
to be a waiver of such provision, or in any way to affect the validity of this
Agreement or any part hereof or the right of any party hereto thereafter to
enforce each and every such provision. 
No waiver of any breach of this Agreement shall be held to constitute a
waiver of any other or subsequent breach.


 


Section 12.6  Severability.  If any
provision of this Agreement or the application thereof to any Person or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof or thereof, or the
application of such provision to Persons or circumstances or in jurisdictions
other than those as to which it has been held invalid or unenforceable, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby or thereby, as the case may be, is not
affected in any manner adverse to any party hereto or thereto. Upon such
determination, the parties hereto shall negotiate in good faith in an effort to
agree upon such a suitable and equitable provision to effect the original
intent of the parties hereto.


 


Section 12.7  Execution in Counterparts. 
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original instrument, but all of which shall be
considered one and the same agreement, and shall become binding when one or
more counterparts have been signed by and delivered to each of the parties
hereto.


 


Section 12.8  Successors and Assigns. 
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns; provided, however,
that the rights and obligations of either party hereto under this Agreement
shall not be assignable by such party without the prior written consent of the
other party.  The successors and
permitted assigns hereunder shall include any permitted assignee as well as the
successors in interest to such permitted assignee (whether by merger, liquidation
(including successive mergers or liquidations) or otherwise).


 


Section 12.9  Third Party Beneficiaries. 
Except to the extent otherwise provided in Article XI, the
provisions of this Agreement are solely for the benefit of the parties hereto
and their respective Affiliates, successors and permitted assigns and shall not
confer upon any third Person any remedy, claim, liability, reimbursement or
other right in excess of those existing without reference to this Agreement.


 


Section 12.10  Notices.  All notices
or other communications under this Agreement shall be in writing and shall be
deemed to be duly given when delivered or mailed in accordance with the terms
of Section 9.12 of the Separation Agreement.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


20

















 


Section 12.11  No Public Announcement. 
Neither DISH nor the Company shall, without the approval of the other,
make any press release or other public announcement concerning the transactions
contemplated by this Agreement, except as and to the extent that either party
hereto shall be so obligated by Applicable Law or the rules of any
regulatory body, stock exchange or quotation system, in which case the other
party hereto shall be advised and the parties hereto shall use commercially
reasonable efforts to cause a mutually agreeable release or announcement to be
issued; provided, however, that the foregoing shall not preclude
communications or disclosures necessary to implement the provisions of this
Agreement or to comply with Applicable Law, accounting and SEC disclosure
obligations or the rules of any stock exchange.


 


Section 12.12  Limited Liability. 
Notwithstanding any other provision of this Agreement, no individual who
is a stockholder, director, employee, officer, agent or representative of the
Company or DISH, in its capacity as such, shall have any liability in respect
of or relating to the covenants or obligations of such party under this
Agreement and, to the fullest extent legally permissible, each of the Company
and DISH, for itself and its respective stockholders, directors, employees,
officers and Affiliates, waives and agrees not to seek to assert or enforce any
such liability that any such Person otherwise might have pursuant to Applicable
Law.


 


Section 12.13  Divestiture.  If the
Receiving Party divests or sells all or a part of the Receiving Party during
the term of this Agreement, the Providing Party shall continue to provide the
Services to the divested or sold entity or part thereof until the termination
or expiration of the provision of Services hereunder, as long as the Providing
Party’s obligations hereunder are not materially increased thereby.


 


Section 12.14  Mutual Drafting. 
This Agreement shall be deemed to be the joint work product of DISH and
the Company and any rule of construction that a document shall be
interpreted or construed against a drafter of such document shall not be
applicable.


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


21

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be signed by their authorized
representatives as of the date first above written.


 


 


	
   

  	
  DISH Network Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Echostar Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to
the Professional Services Agreement


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


22














 


Schedule 2.1.2


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


23

















 


Schedule 2.1.3


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


24

















 


Schedule 2.1.5


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


25

















 


Schedule 2.1.6


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


26

















 


Schedule 2.1.7


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


27

















 


Schedule 2.1.8


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


28

















 


Schedule 2.1.9


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


29

















 


Schedule 2.1.10


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


30

















 


Schedule 2.1.11


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


31

















 


Schedule 2.1.12


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


32














 


Schedule 2.1.13


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


33

















 


Schedule
2.2.1


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


34

















 


Schedule 2.2.2


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions have
been filed separately with the Securities and Exchange Commission subject to a
request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act.


 


35

















 


Schedule 2.2.3


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


36

















 


Schedule 2.2.4


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


37

















 


Schedule
2.2.5


 


***


 






***Certain
confidential portions of this exhibit were omitted by means of redacting a
portion of the text. Copies of the exhibit containing the redacted portions
have been filed separately with the Securities and Exchange Commission subject
to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.


 


38