exv10w26



 





Exhibit 10.26




 [FORM OF]




RECEIVER AGREEMENT




     This Receiver Agreement (“Agreement”) is entered into as of this ___ day of December, 2007,
by and between EchoStar Technologies L.L.C. (“ETLLC”), having a principal place of business at 90
Inverness Circle East, Englewood CO, 80112 and EchoSphere L.L.C. (“Licensee”), having a principal
place of business at 9601 S. Meridian Blvd., Englewood CO 80112.



INTRODUCTION




     A. ETLLC has developed a proprietary Digital Satellite Receiver (as defined in Section 1.4
below) for use in conjunction with the DISH Network, a digital direct broadcast satellite (“DBS”)
programming service network owned and operated by Affiliates of Licensee in the United States (the
“DISH System”, as defined in Section 1.5 below).



     B. Licensee is a distributor of consumer electronics products and desires to purchase OEM
Products (as defined in Section 1.10 below) from ETLLC solely for distribution and sale in
connection with the DISH Network in the Territory (as defined in Section 1.16 below).



     C. ETLLC is willing to sell OEM Products to Licensee for such purposes, subject to and in
accordance with the terms and conditions set forth below.



          NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:




1. DEFINITIONS




     In addition to any other defined terms in this Agreement and except as otherwise expressly
provided for in this Agreement, the following terms shall have the following meanings:



     1.1 “Accessories” means an antenna, LNB, feedhorn, feedarm, and other equipment necessary to
bring a satellite signal into the home, as such components may change from time to time in ETLLC’s
sole discretion.



     1.2 “Affiliate” means, with respect to a party to this Agreement, any person or entity
directly or indirectly controlling, controlled by or under common control with such party.



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     1.3 “Approved OEM Brand Name” means those Licensee Marks, which have been approved in writing
by ETLLC (which approval shall not be unreasonably withheld), for placement on the bezel (front
panel) of OEM Products and packaging therefor in accordance with the trademark usage guidelines (or
as otherwise mutually agreed) of both Licensee and ETLLC.



     1.4 “Digital Satellite Receiver” means a digital satellite receiver/decoder for use in
connection with direct to home satellite programming services (including any remotes and related
components), whether stand alone or incorporated into another product (i.e., a television or VCR),
which may include Accessories.



     1.5
“DISH System” means an MPEG-2, MPEG-4/DVB compliant Digital Satellite Receiver
manufactured by or on behalf of ETLLC solely for use in connection with the DISH Network.



     1.6 “ETLLC Marks” means those trademarks, service marks or trade names owned by ETLLC or for
which ETLLC has the right to grant a sublicense, as such ETLLC Marks may change from time to time in
ETLLC’s discretion.



     1.7 “Intellectual Property” means all patents, copyrights, design rights, trademarks, service
marks, trade secrets, know-how and any other intellectual or industrial property rights (whether
registered or unregistered) and all applications for the same owned or controlled by ETLLC or
Licensee, as the case may be, anywhere in the world, but does not include patents, copyrights,
design rights, trademarks, service marks, trade secrets, know-how or any other intellectual or
industrial property rights (whether registered or unregistered) or applications for the same owned
or controlled by Affiliates of either ETLLC or Licensee.



     1.8 “Licensee Marks” means the trademarks or trade names owned by Licensee, or for which
Licensee has a license to use or the right to grant a sublicense sufficient for the purposes of
this Agreement.



     1.9 Reserved.



     1.10 “OEM Product” means a Digital Satellite Receiver that: (i) is manufactured by or on
behalf of ETLLC; (ii) is branded with an Approved OEM Brand Name; (iii) is designed to be
compatible only with the DISH Network; and (iv) after being equipped with a Smart Card is designed
to be unable to receive, decode or descramble signals transmitted by satellite transponders that
are not owned, leased, or controlled by Licensee or an Affiliate of Licensee. For clarity and the
avoidance of doubt, a Digital Satellite Receiver which is specifically designed for a third party
other than Licensee or an Affiliate of Licensee shall not be considered an OEM Product.



     1.11 Reserved.



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     1.12 “Programming” means the video and audio signals transmitted by DBS satellite transponders
that are owned or controlled by Licensee or an Affiliate and are part of the DISH Network’s regular
programming services.



     1.13 Reserved.



     1.14 “Smart Card” means the card or smart chip, which, through the use of a secure
microprocessor, controls the ability of the OEM Product to access the Programming.



     1.15 “Term” means the duration of this Agreement as specified in Section 10.1 hereof.



     1.16 “Territory” means the geographic boundaries of: (i) the United States of America; (ii)
Puerto Rico; and (iii) any other territorial possession of the United States within DISH Network’s
existing satellite footprint as of the date of this Agreement.



2. MANUFACTURE AND SALE OF OEM PRODUCTS BY ETLLC




     2.1 Manufacture. ETLLC agrees to manufacture and sell OEM Products to Licensee during
the Term, and Licensee has the right, but not the obligation, to purchase OEM Products from ETLLC
during the Term, in accordance with and subject to the terms of this Agreement. ETLLC may select
and authorize any third party to manufacture OEM Products on ETLLC’s behalf.



     2.2 Authorization; Territory. Licensee shall be authorized to resell OEM Products
within the Territory solely to: (i) retailers, distributors, installers and end users
of the DISH Network; and (ii) solely for use in conjunction with the DISH Network in
the Territory. Licensee agrees that it shall not sell any OEM Product to: (a) any person or entity
other than those authorized in clauses (i) and (ii) of the preceding sentence; (b) any person or
entity who Licensee knows or has reason to know intends to use it, or resell it for use, in Canada
or at any other location outside of the Territory; or (c) any person or entity who Licensee knows
or has reason to know intends to use it, or resell it for use, in conjunction with a DBS service
other than the DISH Network.



     2.3 Approved OEM Brand Names. Upon request by Licensee, ETLLC shall manufacture the
OEM Product with any of the Approved OEM Brand Names affixed to the bezel (front panel) of the OEM
Products in accordance with Section 8 below; provided, however, that ETLLC shall have no obligation
under this Section 2.3 unless at the time of such request Licensee issues and delivers to ETLLC a
firm Purchase Order for not less than 10,000 units of an OEM Product with an Approved OEM Brand
Name requested by Licensee which has not been previously manufactured
by ETLLC hereunder At the
request of Licensee, new Approved OEM Brand Names may be added upon prior written approval of ETLLC
(which approval shall not be unreasonably withheld). The



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provisions of Section 8.1 shall apply to the use of ETLLC Marks on or in connection with OEM
Product delivered hereunder which include any Approved OEM Brand Name.




     2.4
Costs. Licensee shall be responsible, and shall pay ETLLC in advance, for all costs
of labor and materials for the customization of an OEM Product with any Approved OEM Brand Name
hereunder, including without limitation: (a) any tooling required; (b) silk-screening front panels
of the satellite receivers; and (c) all costs in connection with the customization of any packaging
for OEM Products.



     2.5 Identical Products. All OEM Products delivered hereunder to Licensee shall be
identical in functionality and technical specifications to DISH Systems, and shall be identical in
appearance to the DISH Systems except for the placement of Approved OEM Brand Names on OEM Products
pursuant to Section 2.3 above, as otherwise expressly provided herein and as otherwise mutually
agreed by the parties in writing.



     2.6 Freedom of Action. Licensee acknowledges and agrees that this Agreement is
non-exclusive in nature and that nothing in this Agreement shall prohibit or otherwise restrict
ETLLC and/or any of their Affiliates from entering into an agreement with any third party
concerning activities which are the same or similar activities to those contemplated in this
Agreement, or any other activity. ETLLC agrees that it shall not directly sell any
OEM Product to any person or entity other than Licensee.



3.
TRADEMARK LICENSE AGREEMENT



     3.1 Trademark License Agreement. Licensee shall sign the Trademark License Agreement
in ETLLC’s customary form.



4. PRICE; PAYMENT TERMS; RELATED MATTERS




     4.1
Price. Licensee shall pay ETLLC for OEM Products cost plus a
mutually agreed upon margin
based upon the fair market value of the OEM Products taking into consideration, among other things,
the performance capabilities and technical specifications of the applicable model of OEM Product
(such as encryption technology used; size of hard drive; ability to decode high definition
programming and number of tuners) (the “OEM Product Price”). In the event the parties are unable
to agree upon the OEM Product Price, the dispute resolution procedures set forth in Article VIII of
the Separation Agreement by and between EchoStar Communications Corporation and EchoStar Holding
Corporation dated [___] (the “Dispute Resolution Procedures”) will be used to determine the fair
market value of the applicable OEM Product and such fair



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market value as so determined shall be deemed to be the OEM Product Price for the applicable model.



     4.2 Price Increases. Notwithstanding Section 4.1 above, increases in the OEM Product
Price shall not apply to any OEM Products that have been ordered under a firm and binding Purchase
Order by Licensee on or before the effective date of such price increase, provided the original
shipment date specified by Licensee is not more than thirty days after the date of ETLLC’s
acceptance of such order.



     4.3 Price Reductions. Notwithstanding Section 4.1 above:



          (a) Price reductions shall be effective immediately, unless ETLLC specifies otherwise. In
the event of a price reduction on an OEM Product, Licensee is entitled to request in writing a
credit (“Price Reduction Credit”) in an amount based on the inventory of Licensee of that particular OEM Product, in accordance with the terms of this section. The amount
of credit shall equal the net amount of the price per unit reduction (the difference between the
old and new net price of the particular OEM Product to Licensee less any applicable discounts,
rebates, incentives, promotions or any other items which tend to have the economic effect of
reducing the bottom line price of the particular OEM Product to Licensee), multiplied by the lesser
of: (i) the number of units of that particular OEM Product which were purchased and paid for by
Licensee during a period of time to be mutually agreed upon immediately preceding the effective
date of the price reduction; or (ii) the sum of the number of units of that particular OEM Product
which were in the inventory of Licensee, plus the number of units of that
particular OEM Product which were in transit to Licensee (first-in first-out basis always assumed,
“FIFO”) as of the effective date of the price reduction.




          (b) The OEM Products shall be compared for “sameness”, counted and priced as systems or
individual components in accordance with how they were originally purchased by Licensee from ETLLC
(OEM Products originally purchased as systems shall not be eligible for a Price Reduction Credit if
the price reduction applies to an individual component, and OEM Products originally purchased as
individual components shall not be eligible for a Price Reduction Credit if the price reduction
applies to a system). Within a reasonable period after the effective date of such price change,
Licensee shall furnish ETLLC an itemized inventory with serial
numbers, of the relevant OEM Products and corresponding Smart Cards for each OEM Product, as of
such date, including information as to the mode of original purchase from ETLLC (as systems or
individual components), the amount of time such OEM Products have been held in the inventory of
Licensee and any other information ETLLC may reasonably request. Any Price
Reduction Credit shall be applied by ETLLC to the purchase price of Licensee’s subsequent orders of
OEM Products from ETLLC. If at the time of the price reduction, Licensee has ordered but not yet
paid for OEM Products, Licensee shall only




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be required to pay for such OEM Products at the reduced price. Therefore, no Price Reduction
Credit shall accrue to those orders.



          (c) ETLLC shall have the right to audit upon reasonable notice the inventory of Licensee
 to verify the accuracy of any request by Licensee for a Price Reduction
Credit. Licensee shall also provide, at ETLLC’s request, the supporting information described in
the preceding paragraph in electronic format to facilitate the verification by ETLLC that an OEM
Product subject to a request for a Price Reduction Credit has not been activated on the DISH
Network.




     4.4 Payment. Except as otherwise agreed to by the parties, all invoices to Licensee
hereunder shall be due, in immediately available funds, within 30 days from the date of invoice,
which shall be issued no earlier than the ship date for the OEM Products covered by the invoice.



     4.5 Taxes. In addition to the prices Licensee pays for OEM Products, as provided
above, Licensee is responsible for any and all sales, use, gross receipts, excise and other taxes
applicable to the sale, use, transportation or addition to value of the OEM Products.



     4.6 Shipping Costs. All OEM Products shall be shipped F.O.B. point of shipment Denver,
Colorado USA or such other location mutually agreed upon between the parties. Title and risk of
loss of OEM Products purchased under this Agreement shall pass to Licensee upon delivery by ETLLC
or its agent to the carrier for shipment thereof. Licensee shall be responsible for all costs of
shipping and insurance of OEM Products. Licensee shall have the sole responsibility to file any
claims with the carrier for damage, missing items or otherwise, and ETLLC shall have no liability
or responsibility if Licensee is unable to obtain full compensation for any loss from the claim.
Licensee shall select the method of shipment and carrier; provided, however, that, in the event
that Licensee fails to make the necessary arrangements for shipment, Licensee acknowledges and
agrees that ETLLC shall, without incurring any liability, have the option, in its sole discretion,
to select the method of shipment and the carrier on Licensee’s behalf and at Licensee’s expense.



     4.7 Default. If Licensee defaults in any payment due ETLLC, or Licensee violates any
term or condition of this Agreement or of any credit extended by ETLLC or any Affiliate to
Licensee, ETLLC reserves the right to: (i) suspend any shipment to Licensee; (ii) require payment
for shipments prior to shipment or delivery; and/or (iii) require payment of all unpaid balances
prior to any shipment and payment for that shipment. Exercise of any of the above rights by ETLLC
shall not be construed as a limitation of ETLLC’s authority to exercise any other rights which
ETLLC may have at law, in equity or pursuant to this Agreement.



5. ORDERS, SHIPMENT; FORECASTS; AND RETURNS




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     5.1 Forecast. Commencing on the fifth business day after this Agreement is executed by
all parties and by the fifteenth (15th) day of each month thereafter during the Term, Licensee will
send ETLLC a rolling forecast in accordance with the forecasting procedures set forth in Schedule 1
(the “Forecast”), the first month of which will be the following month. Subject to the
forecasting modification procedures set forth in Schedule 1, each Forecast shall be deemed a firm and
binding commitment for the purchase of the OEM Products specified therein. Upon failure of
Licensee to issue a Forecast by the twentieth (20th) day of any month, the previous
month’s Forecast shall automatically roll forward by one month and shall be subject to the
provisions of this Section 5. ETLLC shall confirm receipt and acceptance of the Forecast by
facsimile notice to Licensee within a reasonable time from receipt, which acceptance will confirm
the extent to which ETLLC can deliver the OEM Product and ETLLC’s estimated delivery dates for the
OEM Product. The Forecast will be translated into a Purchase Order (as defined below), including
requested delivery dates, by Licensee in accordance with the Purchase Order procedures set forth in
Schedule 1.



     5.2 Purchase Orders. Licensee will order OEM Products by written purchase order
(“Purchase Order”) issued during the term of this Agreement. A Purchase Order shall be a binding
commitment by Licensee and is subject to confirmation and acceptance by ETLLC. Any failure to
confirm a Purchase Order shall not be deemed acceptance by ETLLC. ETLLC will make commercially
reasonable efforts to fulfill all valid Purchase Orders issued by Licensee. ETLLC will inform
Licensee of any rejection of a Purchase Order, in whole or in part, within a reasonable time after
such rejection. Purchase Orders of Licensee shall state only: (i) identity of goods; (ii) quantity
of goods; (iii) purchase price of goods; and (iv) requested ship date of goods. Any additional
terms stated in a Purchase Order shall not be binding upon ETLLC unless expressly agreed to in
writing by ETLLC. In the event of any conflict between the terms of a Purchase Order and the terms
of this Agreement, the terms of this Agreement shall prevail.



     5.3 Cancellations and Modifications. Licensee may not cancel or modify any Purchase
Order that has been confirmed and accepted by ETLLC, except with the prior written consent of
ETLLC.



     5.4 Shipment. Shipments will be made in standard shipping packages that have been
approved by Licensee. All shipments will include a packing slip which lists items contained in the
shipment by part number, descriptions (including the serial number and corresponding Smart Card
number for each OEM Product), quantity, and purchase order number. Not later than a reasonable time
before the scheduled delivery dates, Licensee will notify ETLLC in writing of the specific shipping
destinations and the specific quantity of OEM Products to be shipped to each destination, which
Licensee agrees will be at least one full truckload per destination or such other minimum quantity
as the parties may agree to from time to time in writing.



     5.5 Shipment Dates; Quantities. ETLLC will use reasonable commercial efforts to make
shipments of OEM Products by the dates specified in Purchase Orders



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accepted from Licensee; provided however, that ETLLC shall be permitted to modify shipping
dates due to circumstances beyond ETLLC’s reasonable control. All deliveries are contingent on
ETLLC or its third party manufacturer receiving timely shipment of necessary materials for
production. Within a reasonable time after ETLLC becomes aware that it will not be able to make
shipment of all or a portion of the OEM Products by the date specified in a particular Purchase
Order accepted from Licensee, ETLLC shall give Licensee notice setting forth an estimated delivery
date. Licensee shall have the right, but not the obligation to reduce the total quantity of OEM
Products requested in that Purchase Order in accordance with the Purchase Order modification
procedures set forth in Schedule 1.




     5.6 Partial Shipments. ETLLC reserves the right to ship OEM Products in a single or by
multiple deliveries. Except as expressly provided herein, failure of ETLLC to ship on or about the
date requested in any Purchase Order shall not entitle Licensee to cancel or amend such order.
ETLLC reserves the right to ship all or a portion of any Purchase Order, including partial Purchase
Orders. Licensee shall pay for such portion of the shipment as is actually shipped.



     5.7
Sale of OEM Products by ETLLC. While, subject to Section 5.5, Licensee’s obligation
to honor Purchase Orders submitted to ETLLC is absolute, in the event that Licensee breaches this
obligation, then, in addition to all other remedies available to ETLLC under this Agreement, at
law, in equity or otherwise, and notwithstanding anything to the
contrary herein ETLLC
and/or any of its Affiliates shall have the right, but not the obligation, to sell the OEM Products
covered by the relevant Purchase Order(s) (“Excess Inventory”) without removing Licensee’s
markings.



6. WARRANTY




     6.1 Warranty of OEM Products.



          6.1.1 General Warranty. ETLLC warrants that each OEM Product will be free from defects
in materials and workmanship for the warranty period customarily
provided by ETLLC to Licensee for like product (the “Warranty”). The materials portion of this Warranty shall not
apply to: (i) any OEM Product that is abused, damaged by external causes, altered or misused; or
(ii) OEM Product damaged due to improper installation or use. OEM Products shall be considered
free from defects in workmanship if they are manufactured in accordance with ETLLC’s manufacturing
workmanship standards (or those of any third party which manufactures the OEM Product on ETLLC’s
behalf), conform to the product specifications, and successfully complete product acceptance tests
for the product.




          6.1.2 Deadline for Claims; Disclaimer. ALL CLAIMS FOR WARRANTY FULFILLMENT MUST BE
RECEIVED BY ETLLC (OR ITS DESIGNEE) NO LATER THAN A REASONABLE PERIOD OF TIME AFTER THE EXPIRATION
OF THE WARRANTY PERIOD FOR THE PRODUCT. THIS WARRANTY IS THE ONLY WARRANTY GIVEN BY ETLLC. ETLLC
MAKES, AND LICENSEE RECEIVES, NO





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OTHER WARRANTY EITHER EXPRESS OR IMPLIED. ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED HEREFROM.




          6.1.3 Exclusive Remedy. Licensee’s exclusive remedy for fulfillment of the Warranty
shall be at, at ETLLC’s option, repair by ETLLC at an ETLLC or third party facility of ETLLC’s
choice, replacement of the defective OEM Product, or return of the Purchase Price within a
reasonable period of time after receipt of the OEM Product by ETLLC.




     6.2 Licensee’s Warranty Obligations. In addition to the obligations of Licensee
elsewhere in this Article 6, Licensee shall:



          6.2.1 receive at a Licensee facility all OEM Products returned for both in-warranty and
out-of-warranty repair;




          6.2.2 submit a daily report to ETLLC listing the serial number of each OEM Product and
corresponding Smart Card number which have been received by Licensee and for which the subscriber
has received a replacement OEM Product and/or Smart Card;




          6.2.3 for in-warranty and out-of-warranty returns, conduct, at its own expense, an initial
review of the OEM Product to verify the existence of a defect;




          6.2.4 in the case of OEM Products for which no defect is found, take such actions as it deems
appropriate and ETLLC shall have no liability hereunder;




          6.2.5 in the case of in-warranty OEM Products with defects which are covered by the Warranty
and verified by Licensee, ship such OEM Products at Licensee’s expense, to an ETLLC or third party
facility, as designated by ETLLC, for treatment in accordance with the Warranty in Section 6.1.1
above, with ETLLC responsible for all costs associated with the shipment of conforming OEM Products
to Licensee’s facility to replace failed units covered by the Warranty;




          6.2.6 in the case of out-of-warranty OEM Products with defects verified by Licensee (including
in-warranty OEM Products with defects not covered by the Warranty), Licensee shall take such
actions as it deems appropriate and ETLLC shall have no liability hereunder; and




          6.2.7 reimburse ETLLC, within a reasonable period of time the customary screening fee, and any
out of pocket expenses of ETLLC to third parties, including but not limited to the costs of
returning the OEM Product to Licensee, in relation to OEM Products returned by Licensee under the
preceding subsections for which there was no problem found upon testing by ETLLC, or with respect
to which problems were identified which are not covered by the warranty.




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     6.3 Licensee Warranty.



          6.3.1 Reserved.




          6.3.2 Reserved.




          6.3.3 Licensee shall purchase all Smart Cards necessary to repair OEM Products exclusively
from ETLLC. ETLLC shall supply Licensee with a float of Smart Cards for use in the repair of OEM
Products in a quantity per 1,000 combined sales of OEM Products to end users that is
consistent with ETLLC’s Smart Card warranty replacement history; provided, however, that ETLLC
shall provide Smart Cards in excess of that quantity in the event that Licensee can adequately
justify its need therefore for the repair of OEM Products. ETLLC shall supply Smart Cards to
Licensee for the purposes set forth in this Section 6.3.3 in accordance with the customary practice
of the parties. In the event that NagraStar LLC, or other entity from which ETLLC purchases Smart
Cards, subsequently increases the price charged to ETLLC for Smart Cards, ETLLC shall increase the
price of Smart Cards to be supplied to Licensee under this Section 6.3.3 consistent with the
parties’ customary practice. Licensee acknowledges and agrees that Smart Cards are only being made
available to Licensee under this Section 6.3.3 in order to for Licensee to repair OEM Products. In
view of the potential for a subscriber to defraud DISH Network by improperly obtaining a
replacement Smart Card under a false warranty claim, Licensee agrees that it will not use Smart
Cards provided by ETLLC under this Section 6.3.3 for any purpose whatsoever other than repair of
OEM Products. Licensee further acknowledges and agrees that, with respect to Smart Cards that have
been lost, end users must purchase replacement Smart Cards directly from ETLLC (or such other entity
as ETLLC may designate from time to time in writing) subject to such terms and conditions and at
such prices as ETLLC may determine from time to time in its sole discretion.




     6.4 ETLLC Smart Card Warranty.



          (a) ETLLC warrants that any Smart Cards purchased by Licensee from ETLLC in conjunction with
an OEM Product or under Section 6.3.3 above shall be free from defects in materials and workmanship
for the warranty period customarily provided by ETLLC to Licensee for like product (“Warranty
Period”). Licensee shall return defective Smart Cards purchased by Licensee from ETLLC in
conjunction with an OEM Product or under Section 6.3.3 above at Licensee’s expense. If a Smart
Card purchased by Licensee from ETLLC in conjunction with an OEM Product or under Section 6.3.3
above is: (i) verified as having failed during the Warranty Period; (ii) returned to ETLLC by
Licensee within a reasonable period of time after expiration of the Warranty Period; and (iii)
confirmed as defective by ETLLC, Licensee’s exclusive remedy for fulfillment of this warranty shall
be, at ETLLC’s option, for ETLLC to repair and return or replace and return conforming Smart Cards
to Licensee at no charge to Licensee, or refund Licensee the purchase price of such defective Smart
Cards.




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          (b) THE LIMITED WARRANTY PROVIDED BY ETLLC FOR SMART CARDS IN SECTION 6.4 IS IN LIEU OF ALL
OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OF
FITNESS FOR A PARTICULAR USE OR PURPOSE. IN NO EVENT SHALL ETLLC BE LIABLE FOR ANY INDIRECT,
EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE) ARISING OUT OF OR
IN CONNECTION WITH THE SALE, USE OR PERFORMANCE OF ANY SMART CARDS AND REGARDLESS OF WHETHER SUCH
DAMAGES ARE BASED UPON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER
LEGAL THEORY.




          (c) Licensee agrees to provide ETLLC with a written report matching the identification number
of each replacement Smart Card with the serial number of the OEM Product into which it is installed
prior to returning the OEM Product to the end-user. In addition, Licensee shall notify ETLLC of
the disposition and identification number of all Smart Cards that Licensee has replaced but not
returned to ETLLC within a reasonable time of such replacement.




7. EXPORT RESTRICTIONS




     Licensee acknowledges and understands that U.S. export laws relating to the OEM Products and
Smart Cards provided therewith may change from time to time in the future. Licensee acknowledges
that it is Licensee’s sole responsibility to be and remain informed of all U.S. laws relating to
the export of OEM Products and Smart Cards outside of the U.S. Licensee further acknowledges and
agrees that ETLLC has absolutely no obligation to update Licensee regarding the status of U.S.
export laws or any other U.S. laws relating to the export of OEM Products or Smart Cards outside of
the U.S. Without ETLLC giving any consent for export of the OEM Products or Smart Cards and
subject to territorial limitations of this Agreement, Licensee represents, warrants and covenants
that: (i) prior to exporting or selling any OEM Products or Smart Cards outside of the U.S., it
will investigate all applicable U.S. laws relating to the export of OEM Products and Smart Cards
outside of the U.S.; (ii) it will not export or reexport any OEM Product or Smart Card to Cuba,
Iran, Iraq, Libya, North Korea, Sudan or Syria or any other any destination in any country
prohibited by U.S. export laws governing OEM Products or Smart Cards without the prior approval of
the United States Government; and (iii) it will not use any OEM Product or Smart Card directly or
indirectly to support the design, development, production or use of nuclear, chemical or biological
weapons or ballistic missiles. Licensee is strictly prohibited from violating any U.S. law
relating to the export or sale of OEM Products or Smart Cards outside of the U.S. Should Licensee
export or sell any OEM Product or Smart Card outside of the U.S. in violation of this Agreement
and/or U.S. law, this Agreement shall automatically terminate.



8. TRADEMARKS




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     8.1 ETLLC’s Marks.



          8.1.1 In addition to the Approved OEM Brand Names affixed to the OEM Products under this
Agreement, ETLLC shall have the right to affix such of the ETLLC Marks on or in connection with the
OEM Products, including, but not limited to, on the Accessories and packaging and on the electronic
on screen guide, in accordance with the usage guidelines for the ETLLC Marks or ETLLC’s User
Interface Specification, as such guidelines and/or specification may change from time to time in
ETLLC’s sole discretion. ETLLC agrees that Licensee shall not be required to accept the use of
the ETLLC Marks on the OEM Products in any manner inconsistent with the usage guidelines for the
Licensee Marks and the terms of this Section 8.1 without the prior written consent of Licensee,
which consent shall not be unreasonably withheld.




          8.1.2 Notwithstanding Section 8.1.1 above and Section 8.1.3 below, Licensee acknowledges and
agrees that the ETLLC Marks customarily used and the minimum size and manner of placement
requirements for the ETLLC Marks currently set forth in:
(i) ETLLC’s trademark usage guidelines and User Interface Specification;
and (ii) this Section 8.1.2, are consistent with Licensee’s usage guidelines for use in connection
with the Licensee Marks, and may continue to be applied by ETLLC in the size and manner customarily
used and set forth in ETLLC’s trademark usage guidelines and User Interface Specification respectively and this
Section 8.1.2 for the term of this Agreement, including any extensions thereto. Specifically, and
without limitation of the foregoing, Licensee agrees that ETLLC shall have the right for the
duration of the term and any extensions thereof to affix the ETLLC Marks on or in connection with
the OEM Products, including without limitation on the Accessories and packaging and on the
electronic program guide, such that the ETLLC Marks are displayed in a manner which is at least
equally as prominent as the Approved OEM Brand Names affixed to the same. In the event that
Licensee desires to change its usage guidelines in a manner that would effect the rights granted to
ETLLC by Licensee under this Section 8.1.2, the parties agree to discuss the possibility of
altering the application of the ETLLC Marks, Licensee Marks and Third Party Marks to the OEM
Products in such a manner as will be consistent with the new usage guidelines proposed by Licensee
and insure to ETLLC as nearly as possible the same results to which ETLLC is entitled under this
Section 8.1.2.




          8.1.3 Licensee agrees not to use any of the ETLLC Marks in any manner inconsistent with the
usage guidelines for the ETLLC Marks and without the prior written consent of ETLLC, and, subject
to Section 8.1.2 above, ETLLC agrees that Licensee shall not be required to use the ETLLC Marks in
any manner inconsistent with the usage guidelines for the Licensee Marks without the prior written
consent of Licensee which consent shall not be unreasonably withheld. Licensee shall not use any
of the ETLLC Marks without the prior written consent of ETLLC, which consent ETLLC may withhold in
its sole discretion. Licensee expressly acknowledges and understands that ETLLC and its Affiliates
claim to have the absolute ownership of, or right to allow Licensee to use, the ETLLC Marks.




12









 








          8.1.4 Regardless of whether ETLLC grants Licensee permission to use any ETLLC Mark, Licensee
agrees that it will not in any way dispute or impugn the validity of any of the ETLLC Marks or
registrations of the ETLLC Marks, nor the sole proprietary right of ETLLC and its Affiliates
thereto, nor the right of ETLLC and its Affiliates to use or license the use of the ETLLC Marks in
the Territory or elsewhere, either during the Term or at any time thereafter. Licensee further
agrees not to perform, either during the Term or at any time thereafter, any act or deed either of
commission or of omission which is inconsistent with ETLLC or its Affiliates’ proprietary rights
in and to the ETLLC Marks, whether or not the ETLLC Marks are registered.




     8.2 Licensee’s Marks.



          8.2.1 ETLLC agrees not to use any of the Licensee Marks in any manner inconsistent with the
usage guidelines for the Licensee Marks and without the prior written consent of Licensee, and
Licensee agrees that ETLLC shall not be required to use the Licensee Marks in any manner
inconsistent with the usage guidelines for the ETLLC Marks without the prior written consent of
ETLLC which consent shall not be unreasonably withheld. ETLLC shall not use any of the Licensee
Marks without the prior written consent of Licensee, which consent Licensee may withhold in its
sole discretion; provided however, that no consent shall be required
for ETLLC or an Affiliate to
sell Excess Inventory under Section 5.7 above, for which
Licensee hereby grants to ETLLC and its
Affiliates a license to the Licensee Marks and any Approved OEM Brand names only as necessary for
the marketing and sale of such Excess Inventory. ETLLC expressly acknowledges and understands that
Licensee and its Affiliates claim to have the absolute ownership of, or right to allow ETLLC to
use, the Licensee Marks.




          8.2.2 Regardless of whether Licensee grants ETLLC permission to use any Licensee Mark, ETLLC
agrees that it will not in any way dispute or impugn the validity of any of the Licensee Marks or
registrations of the Licensee Marks, nor the sole proprietary right of Licensee and its Affiliates
thereto, nor the right of Licensee and its Affiliates to use or license the use of the Licensee
Marks in the Territory or elsewhere, either during the Term or at any time thereafter. ETLLC
further agrees not to perform, either during the Term or at any time thereafter, any act or deed
either of commission or of omission which is inconsistent with Licensee or its Affiliates
proprietary rights in and to the Licensee Marks, whether or not the Licensee Marks are registered.




     8.3 Third Party Trademarks. Licensee may also request that ETLLC affix to the OEM
Products the “DVB” and “MPEG 2”, “MPEG 4” standard trademarks, provided that no third party
trademarks shall be more than half as large as the Licensee and ETLLC trademarks. Licensee
recognizes and understands that ETLLC has no authority to grant Licensee any rights to affix the
“DVB”, “MPEG 2” and “MPEG 4” standard trademarks to an OEM Product. Should Licensee desire to do
so, Licensee must negotiate the entitlement of such rights with the applicable rights holders.
Licensee hereby acknowledges that, in the future, ETLLC may be obligated to affix the
trademarks, service marks or trade names of the owners of third party technology that is presently,
or at some time in the future, incorporated into the OEM Product, and



13









 




Licensee hereby grants its
approval for ETLLC to affix any such trademarks, service marks or trade names to the OEM Product
subject to the size requirements set forth above, unless the parties mutually agree otherwise.




9. CONFIDENTIAL AND PROPRIETARY INFORMATION




     9.1 General. At all times during the term of this Agreement and for a period of five
(5) years thereafter, the parties and their employees will maintain, in confidence, the terms and
provisions of this Agreement, as well as all data, summaries, reports or information of all kinds,
whether oral or written, acquired, devised or developed in any manner from the other party’s
personnel or files, or as a direct or indirect result of a party’s actions or performance under
this Agreement, and each party represents that it has not and will not reveal the same to any
persons not employed by such party, except: (i) at the written direction of the party which is the
owner of such information; (ii) to the extent necessary to comply with law, the valid order of a
court of competent jurisdiction or the valid order or requirement of a governmental agency or any
successor agency thereto, in which event the disclosing party shall notify the owner of the
information in advance, prior to making any disclosure, and shall seek confidential treatment of
such information; (iii) as part of its normal reporting or review procedure to its parent company,
its auditors and its attorneys, provided such parent company, auditors and attorneys agree to be
bound by the provisions of this paragraph; or (iv) to the extent necessary to permit the
performance of obligations under this Agreement.



     9.2 Subscriber Information. All subscribers who subscribe to any of the Programming
and/or any other programming services offered by Licensee and/or any of its Affiliates shall be
deemed customers of Licensee for all purposes relating to programming services (including without
limitation video, audio and data services) and the hardware necessary to receive programming
services. ETLLC acknowledges and agrees that the names, addresses and other identifying
information of such subscribers (“Subscriber Information”) are as between ETLLC and Licensee, with
respect to the delivery of programming services and the hardware necessary to receive programming
services, proprietary to Licensee, and shall be treated with the highest degree of confidentiality
by ETLLC. ETLLC will not directly or indirectly use any Subscriber Information for the purpose of
soliciting, or to permit any others to solicit, such subscribers to subscribe to any other
programming services or to promote the sale of any hardware product used in connection with
programming services, and ETLLC shall under no circumstance directly or indirectly reveal any
Subscriber Information to any third party for any reason without the express prior written consent
of Licensee, which Licensee may withhold in its sole and absolute discretion; provided, however,
that nothing shall prohibit ETLLC from utilizing its own customer list for its general business
operations unrelated to the delivery and/or promotion of programming services or the sale of any
product used in conjunction with programming services. The provisions of this Section 9.2 shall
survive termination or expiration of this Agreement indefinitely.



14









 





     9.3 Equitable Relief. ETLLC agrees that a breach of the obligations set forth in this
Section 9 will result in the substantial likelihood of irreparable harm and injury to the Licensee
or its Affiliates for which monetary damages alone would be an inadequate remedy, and which damages
are difficult to accurately measure. Accordingly, ETLLC agrees that Licensee and its Affiliates
(or either of them) shall have the right, in addition to any other remedies available, to obtain
immediate injunctive relief (without the necessity of posting or filing a bond or other security)
to restrain the threatened or actual violation hereof by the ETLLC, its Affiliates, its employees
and agents, as well as other equitable relief allowed by the federal and state courts. The
foregoing is agreed to without prejudice to the Licensee and its Affiliates (or either of them) to
exercise any other rights and remedies they may have, including without limitation, the right to
terminate this Agreement and seek damages or other legal or equitable relief. The provisions of
this Section 9.3 shall survive termination or expiration of this Agreement indefinitely.



     9.4 Economic Benefits Derived Held in Trust. In the event that ETLLC derives an
economic benefit, in any form, from a violation of its obligations under Section 9.2, it is hereby
agreed that such economic benefit is the property of Licensee and that ETLLC shall deliver the cash
value of the economic benefit to Licensee immediately upon receipt of the economic benefit. It is
further agreed that ETLLC shall hold such economic benefit in trust for the benefit of Licensee
until such time as its cash value is delivered to Licensee. The foregoing is agreed to without
prejudice to Licensee to exercise any other rights and remedies it may have, including without
limitation, the right to terminate this Agreement and seek damages or other legal or equitable
relief. The provisions of this Section 9.4 shall survive termination or expiration of this
Agreement indefinitely.



10. TERM AND TERMINATION




     10.1 Term. This Agreement shall commence on the date first written above and shall
continue for two (2) years thereafter (the “Initial Term”) unless terminated sooner as provided in
this Agreement. Licensee shall have the exclusive right, but not the obligation, to extend this
Agreement annually for up to two (2) years (each a “Renewal Term” and the Initial Term and any
Renewal Term collectively the “Term”), upon submission of written notice to ETLLC no less than one
hundred eighty (180) calendar days prior to expiration of the current Term.



     10.2 Termination By Either Party Upon Default. This Agreement may be terminated by a
party (the “Affected Party”) upon the occurrence of any of the following with respect to the other
party (the “Other Party”):



          10.2.1 The Other Party commits a payment default which is not cured within ten (10) days of
receipt of written notice from the Affected Party.




          10.2.2 The Other Party defaults on any obligation or breaches any representation, warranty or
covenant in this Agreement (regardless of whether breach




15









 







or default of such obligation,
representation, warranty or covenant is designated as giving rise to a termination right), and such
default or breach is not cured within thirty (30) days of receipt of written notice from the
Affected Party. The parties agree that all obligations, representations, warranties and covenants
contained in this Agreement, whether or not specifically designated as such, are material to the
agreement of the parties to enter into and continue this Agreement.




     10.3 Termination by ETLLC. ETLLC may terminate this Agreement upon written notice to
Licensee at any time in case of: (i) acquisition of Licensee, directly or indirectly, by a third
party, or the merger of Licensee with a third party, which manufactures set-top boxes (this Section
10.3 will not apply to an acquisition of Licensee by, or the merger of Licensee with, an Affiliate
of Licensee; provided that such Affiliate is not a direct or indirect manufacturer of set-top
boxes); (ii) Licensee’s falsification of any material records or reports required hereunder; or
(iii) a material breach, as determined in ETLLC’s sole judgment, by Licensee of the confidentiality
provisions contained in Section 9 above.



     10.4 Purchase During Notice Period. During any notice and cure period under Section
10.2, ETLLC will determine in its sole judgment the amount of OEM Products, if any, Licensee may
purchase.



     10.5 Termination for Convenience by Licensee. Licensee may terminate this Agreement
for any or no reason by providing ETLLC not less than sixty (60) days prior written notice setting
forth the termination date for this Agreement.



     10.6 Payment, Forfeiture and Cancellation. Upon expiration or termination of this
Agreement for any reason, all sums due ETLLC must be immediately paid. Any credit or allowance
under any cooperative or incentive program or other promotion (including any credit or allowance
against the future purchase of OEM Products) which has not been applied by such date shall be
forfeited unless otherwise expressly provided in the program or promotion, and all orders in
process may at ETLLC’s option be deemed canceled unless in transit or paid for in advance by
Licensee. ETLLC and Licensee hereby waive all claims against each other in connection with such
forfeiture and cancellation.



     10.7 Survival of Certain Obligations. Termination or expiration of this Agreement for
any reason shall not terminate any obligation or liability of one party to the other which is
specified in this Agreement to expressly survive termination or expiration, which arises by
operation of law or which logically is to be performed after termination or expiration, nor
preclude or foreclose recovery of damages or additional remedies available to any party under
applicable law, except as otherwise provided in this Agreement.



11 REPRESENTATIONS AND WARRANTIES




16









 








     11.1 Representations, Warranties and Covenants of Licensee. Licensee represents,
warrants and covenants, as follows, which representations, warranties and covenants shall survive
the execution of this Agreement:



          11.1.1 Licensee has the right and authority to enter into this Agreement and the execution,
delivery and performance by Licensee of this Agreement have been duly authorized by all requisite
corporate action and will not violate any provision of
Licensee’s articles of organization, or any provision of any agreement by which Licensee is bound or affected.




          11.1.2 Licensee acknowledges the applicability of U.S. export control regulations which
prohibit the sale, export, reexport or diversion of certain products and technology to certain
countries, and will not sell, export or reexport any of the OEM Products, in the form received, or
as modified or incorporated into other equipment, except as permitted under this Agreement and
authorized by such regulations.




          11.1.3 Licensee is not, nor at any time will it be, in violation of any applicable Law by
entering into and undertaking the performance of this Agreement and in performing its obligations
pursuant to this Agreement. Licensee agrees to comply with any and all applicable laws.




          11.1.4 Licensee shall provide to ETLLC such adequate assurances as ETLLC may require from time
to time in order to ensure that the requirements of this Section 11.1 have been met, and will
continue to be met on an ongoing basis, by Licensee.




          11.1.5 Except as otherwise expressly stated in this Agreement, Licensee makes no other
representations or warranties, either express or implied, statutory or otherwise, and all such
warranties are hereby excluded except to the extent such exclusion is absolutely prohibited by law.




     11.2 Representations, Warranties and Covenants of ETLLC. ETLLC represents, warrants
and covenants as follows, which representations, warranties and covenants shall survive the
execution of this Agreement:



          11.2.1 ETLLC has the right and authority to enter into this Agreement and the execution,
delivery and performance by ETLLC of this Agreement have been duly authorized by all requisite
corporate action and will not violate any provision of ETLLC’s articles of organization, or any provision
of any agreement by which ETLLC is bound or affected.




          11.2.2 ETLLC is the beneficial owner of Intellectual Property created independently by it, and
such Intellectual Property is not subject to any
covenant or other restriction preventing or limiting ETLLC’s right to manufacture the OEM
Products as contemplated by this Agreement.





17









 








          11.2.3 ETLLC is not, nor at any time will it be, in violation of any applicable Law by
entering into and undertaking the performance of this Agreement and in performing their obligations
pursuant to this Agreement. ETLLC agrees to comply with any and all applicable Laws.




          11.2.4 ETLLC shall provide to Licensee such adequate assurances as Licensee may require from
time to time in order to ensure that the requirements of this Section 11.2 have been met, and will
continue to be met on an ongoing basis, by ETLLC.




          11.2.5 Except as otherwise expressly stated in this Agreement, ETLLC makes no other
representations or warranties, either express or implied, statutory or otherwise, and all such
warranties are hereby excluded except to the extent such exclusion is absolutely prohibited by law.




12. LIMITATION OF LIABILITY




     12.1 Limitation. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OR LOST
BUSINESS, REVENUE, PROFITS OR GOODWILL) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT,
TERMINATION OR ANY OTHER MATTER RELATED HERETO. IN ADDITION TO AND WITHOUT LIMITATION OF THE
FOREGOING, ETLLC SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO LICENSEE OR ANYONE CLAIMING THROUGH
LICENSEE FOR ANY LOSS OR DAMAGE (INCLUDING, GENERAL, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL AND
CONSEQUENTIAL DAMAGES) ARISING OUT OF ANY FAILURE OR DELAY IN SHIPMENT, LATE SHIPMENT, OR DELIVERY
OF ALL OR ANY PART OF ANY ORDER.



     12.2 Risk Allocation. The parties agree that each and every provision of this
Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of
damages is expressly intended to be severable and independent of any other provision since they
represent separate elements of risk allocation between the parties and shall be separately
enforced. This Section 12.2 shall expressly survive the expiration or termination of this
Agreement.



13. INDEMNIFICATION




     13.1 General Indemnity



          13.1.1 By Licensee. In addition to the intellectual property indemnity in Section
13.2.1 below, Licensee shall defend, indemnify and hold ETLLC and its Affiliates, and any and all
of its and their respective officers, directors, shareholders,





18









 







employees, agents and
representatives, and any and all of its and their assigns, successors, heirs and legal
representatives (collectively the “ETLLC Group”), harmless from and against any and all claims,
demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including,
but not limited to, reasonable attorneys’ fees) incurred by the ETLLC Group arising directly out
of: (i) a breach or default of any obligation, representation, warranty or covenant of Licensee
hereunder; (ii) manufacture and sale to Licensee of OEM Products bearing, or use by ETLLC or an
Affiliate of, any Approved OEM Brand Name on or in connection with the OEM Products as provided in
this Agreement; and (iii) any claims of third parties otherwise arising out of or in connection
with the marketing, promotion, sale and distribution of OEM Products.




          13.1.2 By ETLLC. In addition to the intellectual property indemnity in Section 13.2.2
below, ETLLC shall defend, indemnify and hold Licensee and its Affiliates, and any and all of its
and their respective officers, directors, shareholders, employees, agents and representatives, and
any and all of its and their assigns, successors, heirs and legal representatives (collectively the
“Licensee Group”), harmless from and against any and all claims, demands, litigation, settlements,
judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable
attorneys’ fees) incurred by the Licensee Group arising directly out of: (i) a breach or default of
any obligation, representation, warranty or covenant of ETLLC hereunder; and (ii) any claim
whatsoever of product liability with respect to the OEM Products.




     13.2 Intellectual Property Indemnity



          13.2.1 By Licensee.




               (a) Licensee, at its own expense, shall defend any suit brought against ETLLC insofar as based
upon a claim that the OEM Product(s), as such, directly infringes any third party trademark, trade
name or service mark (“Third Party Mark”) due to any trademark, trade name or service mark affixed
to the OEM Products at Licensee’s request, and shall indemnify ETLLC against any final award of
damages or costs in such suit. This indemnity is conditional upon ETLLC giving Licensee prompt
notice in writing of any suit for such infringement, full authority at Licensee’s option to settle
or conduct the defense thereof and full assistance and cooperation in said defense.



               (b) No cost or expense shall be incurred on behalf of Licensee without its written consent.



               (c) The foregoing states the entire liability of Licensee in connection with infringement of a
Third Party Mark by an OEM Product, and except as
stated in this clause, Licensee will not be liable for any loss or damage of whatever kind
(including in particular any incidental, indirect, special or consequential damage)



19









 







suffered by
ETLLC in respect of the infringement of any Third Party Intellectual Property by an OEM Product.



          13.2.2 By ETLLC.




               (a) Except as otherwise agreed to by the parties, ETLLC, at its own expense, shall defend any
suit brought against Licensee insofar as based upon a claim that an OEM Product or any Accessory
thereto directly infringes (excluding Third Party Marks affixed to the OEM Products at Licensee’s
request) any third party patent, copyright, trademark, service mark, trade secret, mask work or
other intellectual or industrial property right (“Third Party Intellectual Property”) and shall
indemnify Licensee against any final award of damages or costs in such suit. This indemnity is
conditional upon Licensee giving ETLLC prompt notice in writing of any suit for such infringement,
full authority at ETLLC option to settle or conduct the defense thereof and full assistance and
cooperation in said defense.



               (b) No cost or expense shall be incurred on behalf of ETLLC without its written consent.



               (c) Except as otherwise agreed to by the parties, in the event that a OEM Product is in such
suit held to constitute infringement, ETLLC at its own election and at its own expense may either
procure for Licensee the rights to continue the sale of a OEM Product, or modify a OEM Product so
that it becomes non-infringing.



               (d) ETLLC shall not be obligated to defend against, and shall not be liable for infringement
of any Third Party Intellectual Property claim covering combination of a OEM Product with any other
product not supplied by ETLLC.



               (e) ETLLC is not liable for any claim or demand, based upon infringement or alleged
infringement of any Third Party Intellectual Property, when the damages in such claim or demand are
directly or indirectly measured by amount of use of any OEM Product, irrespective of whether such
claim or demand alleges that the OEM Product as such, or its use, infringes or contributes to the
infringement of such Third Party Intellectual Property.



               (f) Except as otherwise agreed to by the parties, ETLLC’s liability under this Section 13.2
shall be limited to US $2,500,000.00 per occurrence or US $5,000,000.00 in the aggregate.



               (g) Except as otherwise agreed to by the parties, the foregoing states the entire liability of
ETLLC in connection with infringement of Third Party Intellectual Property by the OEM Products and
except as stated in this clause, ETLLC will not be liable for any loss or damage of whatever kind
(including in particular
any incidental, indirect, special or consequential damage) suffered by Licensee or any other
person in respect of the infringement of any Third Party Intellectual Property.



20









 





     13.3 Indemnification Procedure. The party seeking indemnification (the “Indemnified
Party”) shall promptly notify the party from whom indemnification is being sought (the
“Indemnifying Party”). The Indemnified Party shall not make any admission as to liability or agree
to any settlement of or compromise any claim without the prior written consent of the Indemnifying
Party. The Indemnifying Party shall be entitled to have the exclusive conduct of and/or settle all
negotiations and litigation arising from any claim and the Indemnified Party shall, at the
Indemnifying Party request and expense, give the Indemnifying Party all reasonable assistance in
connection with those negotiations and litigation.



14. GENERAL




     14.1 Taxes. Any and all payments required to be made by Licensee to ETLLC under this
Agreement are exclusive of any tax, levy or similar governmental charge (“Taxes”) that may be
assessed against Licensee by any jurisdiction. In the event that, under the laws of any
jurisdiction, Licensee is required to withhold Taxes on any such payment (with the exception for
income Taxes assessed against ETLLC, or any Affiliate thereof), the amount of the payment will be
automatically increased so that the amount actually remitted to ETLLC, net of all Taxes, equals the
amount invoiced or otherwise due. Licensee shall forthwith pay any amounts deducted or withheld
from such payments to the relevant taxing or other authority in accordance with applicable law.
Within thirty (30) days after the date of any payment of Taxes, Licensee will furnish to ETLLC a
copy of a receipt evidencing payment thereof.



     14.2 Remedies Cumulative. It is agreed that the rights and remedies herein provided
in case of default or breach of this Agreement are cumulative and shall not affect in any manner
any other remedies that any party may have by reason of such default or breach. The exercise of
any right or remedy herein provided shall be without prejudice to the right to exercise any other
right or remedy provided herein, at law, or in equity.



     14.3 Notice. Any notice to be given hereunder shall be in writing and shall be sent
by facsimile transmission, or by first class certified mail, postage prepaid, or by overnight
courier service, charges prepaid, to the party notified, addressed to such party at the following
address, or sent by facsimile to the following fax number, or such other address or fax number as
such party may have substituted by written notice to the other party. The sending of such notice
with confirmation of receipt thereof (in the case of facsimile transmission) or receipt of such
notice (in the case of delivery by mail or by overnight courier service) shall constitute the
giving thereof:



	 	 	 	 	 
	 

	 	If to Licensee:
	 	9601 South Meridian Boulevard

Englewood, Colorado 80112

Attn: General Counsel






21









 






	 	 	 	 	 
	 

	 	If to ETLLC:
	 	90 Inverness Circle East

Englewood, Colorado 80112

Attn: Mark Jackson
	 
	 	 	 	 
	 

	 	 	 	and to

Attn: General Counsel






     14.4 Independent Contractors. This Agreement and the transactions contemplated hereby
are not intended to create an agency, partnership or joint venture relationship between the
parties, or confer any benefit on any third party. All agents and employees of each party shall be
deemed to be that party’s agents and employees exclusively, and the entire management, direction,
and control thereof shall be vested exclusively in such party. Each party, its agents and
employees, shall not be entitled to any benefits, privileges or compensation given or extended by
the other party to its employees.



     14.5 Waiver. The failure or delay of either party to exercise any right hereunder
shall not be deemed to be a waiver of such right, and the delay or failure of either party to give
notice of, or to terminate this Agreement for, breach or default shall not be deemed to be a waiver
of the right to do so for that or any subsequent breach or default or for the persistence in a
breach or default of a continuing nature.



     14.6 Choice of Law and Exclusive Jurisdiction.



          14.6.1 This Agreement shall be governed, construed and enforced in accordance with the laws of
the State of Colorado and the United States of America, without giving effect to the conflict of
law provisions thereof. The parties acknowledge and agree that they and their counsel have
reviewed, or have been given a reasonable opportunity to review, this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement or any amendments or Schedules
hereto.




          14.6.2 Except as otherwise agreed to by the parties, any and all disputes arising out of, or
in connection with, the interpretation, performance or the nonperformance of this Agreement or any
and all disputes arising out of, or in connection with, transactions in any way related to this
Agreement and/or the relationship between the parties (including but not limited to the termination
of this Agreement or the relationship or disputes under rights granted pursuant to statutes or
common law, including those in the country in which Licensee is located) shall be litigated solely
and exclusively before the United States District Court for the District of Colorado. The parties
consent to the in personam jurisdiction of said court for the
purposes of any such litigation, and waive, fully and completely, any right to dismiss and/or
transfer any action pursuant to 28 U.S.C.A. 1404 or 1406 (or any successor statute). In the event
the United States District Court for the District of Colorado does




22









 







not have subject matter
jurisdiction of said matter, then such matter shall be litigated solely and exclusively before the
appropriate state court of competent jurisdiction located in Arapahoe County, State of Colorado.




     14.7 Entire Agreement. This Agreement sets forth the entire, final and complete
understanding between the parties hereto relevant to the subject matter of this Agreement, and it
supersedes and replaces all previous understandings or agreements, written, oral, or implied,
relevant to the subject matter of this Agreement made or existing before the date of this
Agreement. Except as expressly provided by this Agreement, no waiver or modification of any of the
terms or conditions of this Agreement shall be effective unless in writing and signed by both
parties.



     14.8 Force Majeure. Neither party shall be liable to the other party for
nonperformance or delay in performance of any of its obligations under this Agreement due to causes
reasonably beyond its control or which cause makes performance a commercial impracticability,
including: (i) materials or part shortages and software discrepancies or anomalies (provided such
shortages, discrepancies, or anomalies are not reasonably within the control of ETLLC); and (ii)
acts of God, fire, explosion, flood, windstorm, earthquake, trade embargoes, strikes, labor
troubles or other industrial disturbances, accidents, governmental regulations, riots, and
insurrections (“Force Majeure”). Upon the occurrence of a Force Majeure condition, the affected
party shall immediately notify the other party with as much detail as possible and shall promptly
inform the other party of any further developments. Immediately after the Force Majeure event is
removed or abates, the affected party shall perform such obligations with all due speed. Neither
party shall be deemed in default of this Agreement if a delay or other breach is caused by a Force
Majeure event. If a Force Majeure event is expected to continue for more than three (3) months,
any party may terminate this Agreement by providing thirty (30) days prior written notice to the
other party. Such termination shall be without any continuing liabilities or obligations on the
part of one party to the other of any kind except as expressly set forth herein.



     14.9 Severability. If any term or provision herein, or the application thereof to any
person, entity, or circumstances shall to any extent be invalid or unenforceable in any pertinent
jurisdiction, the remainder hereof shall not be affected thereby but shall be valid and enforceable
as if the invalid term or provision were not a part hereof.



     14.10 Headings. The descriptive headings contained in this Agreement are included for
convenience and reference only and shall not be held to expand, modify, amplify or aid in the
interpretation, construction or meaning of this Agreement.



     14.11
Assignment. Subject to Section 10.3, Licensee may assign its rights and delegate its duties under this
Agreement in whole or in part at any time; provided, however, that, in the event
that Licensee assigns this Agreement to a non-Affiliate, the assignee must be at least as
creditworthy as Licensee at the time they originally executed this Agreement. ETLLC may not
assign any rights or delegate any duties under this Agreement without Licensee’s prior written
consent, which consent shall not be unreasonably withheld,



23









 




except to an Affiliate of ETLLC;
provided, however, that, such Affiliate is: (i) at least as creditworthy as ETLLC
at the time it originally executed this Agreement; and (ii) is not a direct or indirect provider of
direct to home programming. Any attempt to assign the Agreement without such consent shall be void.
This Agreement will bind and inure to the benefit of the parties and their respective successors
and permitted assigns.




     14.12 Compliance with Law. The parties shall comply with, and agree that this
Agreement is subject to, all applicable federal, state, and local laws, rules and regulations, and
all amendments thereto, now enacted or hereafter promulgated in force during the term of this
Agreement.



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          IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly
authorized officers or representatives as of the date first written above.




	 	 	 	 	 
	 	ECHOSTAR TECHNOLOGIES L.L.C.

 	 
	 	By:  	__________________________
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ECHOSPHERE L.L.C.

 	 
	 	By:  	__________________________
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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