DIRECTV SMATV DEALER AGREEMENT

Transcription

1 DIRECTV SMATV DEALER AGREEMENT This DIRECTV SMATV Dealer Agreement (this Agreement ) is made and entered into as of THE LATEST DATE SET FORTH ON THE SIGNATURE PAGE HERETO (the Effective Date ), between DIRECTV, LLC, a California limited liability company ( DIRECTV ) and a wholly owned subsidiary of AT&T, Inc. ( AT&T ), and THE DEALER LISTED ON THE SIGNATURE PAGE HERETO ( Dealer ). RECITALS A. DIRECTV operates a multi-channel video and entertainment service ( DIRECTV Service ) through which consumers are able to receive video and audio programming, and other services distributed by DIRECTV via a direct broadcast satellite system and other specialized satellite receiving equipment (the DIRECTV System ). B. Dealer distributes television programming and services to multi-unit commercial properties and other establishments via one or more satellite master antenna television distribution systems (each, a SMATV System ). C. DIRECTV and Dealer desire to establish a business relationship whereby Dealer will promote and implement the delivery of DIRECTV SMATV Programming to SMATV Establishments and act as a commissioned sales representative of DIRECTV to solicit and take orders for DIRECTV SMATV Programming from SMATV Establishments. AGREEMENT NOW THEREFORE, in consideration of the mutual promises and covenants expressed herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE I DEFINITIONS 1.1 The following capitalized terms shall have the following definitions. Certain other capitalized terms shall have the meanings given them elsewhere in this Agreement. Dealer Center shall mean the DIRECTV Dealer Center located at Dealer Property shall mean a SMATV Establishment: (i) whose initial order for DIRECTV SMATV Programming is first taken by Dealer and is transmitted to DIRECTV by Dealer, in accordance with the terms of this Agreement, (ii) which is not, then or at any time in the ninety (90) day period prior to the date Dealer takes such establishment s order for DIRECTV SMATV Programming, a SMATV System subscriber to any programming services provided by DIRECTV, and (iii) for which DIRECTV confirms to Dealer that DIRECTV has activated a subscription for DIRECTV SMATV Programming. Customer Information includes, to the extent received, observed, collected, handled, stored, or accessed, in any way, in connection with this Agreement: DIRECTV s, AT&T s, or their affiliates customers names, addresses, and phone numbers, any such customer s or its employee s personal, health or financial information, authentication credentials, Internet activities, history, and/or patterns of use, information concerning accounts, network performance and usage information, web browsing and wireless application information, location information, any other information associated with a customer of DIRECTV s, AT&T s, or their affiliates or with persons in the household of a customer of DIRECTV, AT&T, or their affiliates, and any information available to DIRECTV, AT&T, their affiliates and/or the suppliers of DIRECTV, AT&T or their affiliates (for avoidance of doubt, including Dealer) by virtue of DIRECTV s, AT&T s, or their affiliates relationship with customers as a provider of mobile and non-mobile communications, Internet, data, video, audio, information or other services,

2 including the quantity, technical configuration, location, type, destination, and amount of use of communications or other services subscribed to, and information contained on the bills of DIRECTV, AT&T or their affiliates customers. DIRECTV SMATV Programming shall mean only those programming services described on the SMATV Rate Card, as amended from time to time by DIRECTV in its sole discretion. The current SMATV Rate Card is available for viewing by Dealer at the Dealer Center. DIRECTV Equipment shall mean the direct broadcast satellite receiving equipment, which is manufactured by a manufacturer, authorized by DIRECTV from time to time, in its sole discretion, and associated hardware necessary for installation and operation of a SMATV system at a SMATV Establishment. DIRECTV SMATV System shall mean a SMATV System that utilizes any DIRECTV Equipment for the receipt and distribution of DIRECTV SMATV Programming. MATV System shall mean an off-air broadcast receiving and distribution system. Net Receipts shall mean gross receipts received by DIRECTV from the sale of DIRECTV SMATV Programming to Dealer Properties during the Term (as defined herein), net of any discounts, refunds, credits, taxes or applicable governmental charges (other than income or franchise taxes) related to the sale or the order or use of such DIRECTV SMATV Programming. SMATV Establishment shall mean facilities comprised of multiple units or consisting of multiple television outlets approved by DIRECTV in its sole discretion which receive DIRECTV SMATV Programming from a common receiving dish and SMATV System and such DIRECTV SMATV Programming is provided as an amenity to guests, patients, residents or other qualifying individuals. SMATV Establishments consist of Commercial SMATV Establishments, which include hotels, motels, resorts, hospitals, nursing homes or other healthcare facilities, dormitories, recreation parks (such as a camp ground and RV park), prisons and such other types of facilities with temporary tenant occupancy approved by DIRECTV as Commercial SMATV Establishments. SMATV Terms of Service means the agreement governing DIRECTV s relationship with SMATV Establishments in the forms made available by DIRECTV from time to time, as amended by DIRECTV from time to time in its sole discretion. Subcontractor or subcontractor means any person or entity (including an agent) supplying labor or materials to perform any or all of Dealer s obligations under this Agreement as well as any person or entity that is providing any type data processing services including data manipulation, data storage, data retrieval, data disposal, or other data-related services that involve DIRECTV, AT&T or any AT&T customer s data. The terms Subcontractor or subcontractor specifically includes any person or entity at any tier of subcontractors, and shall not be limited to those persons or entities with a direct relationship with Dealer. Subscriber Information shall mean that customer identification (including the actual contact person at the SMATV Establishment, their title, phone number, address, and physical address), location, and billing information which DIRECTV requires, as indicated in the SMATV Terms of Service. Subscriber Units has the following different meanings depending on the type of SMATV Establishment: (i) for hotel and motel type of establishments, it means the total number of available rooms; (ii) for hospital and nursing home type of establishments, it means the total number of televisions in patient s rooms on premises; and (iii) for dormitory, office building and all other types of Commercial SMATV Establishments, it means the total number of cable drops connected to the SMATV System v1 2

3 ARTICLE II GENERAL RIGHTS AND OBLIGATIONS 2.1 Solicitation of DIRECTV SMATV Programming. (a) Grant of Right. DIRECTV hereby gives Dealer the non-exclusive right to, and Dealer, at its own cost, shall use its best reasonable efforts to (i) market DIRECTV SMATV Programming to SMATV Establishments and (ii) solicit and take orders for DIRECTV SMATV Programming from SMATV Establishments. Dealer understands that it shall not have any right, unless specifically provided by DIRECTV under separate written agreement, to: (i) solicit or take orders for DIRECTV SMATV Programming from any person or entity that is not a SMATV Establishment (including, without limitation, private, individual residential subscribers on a direct-tohome basis, commercial locations such as bars and nightclubs whether or not located in a SMATV Establishment, or any other commercial business establishments not specifically identified herein); (ii) use any person or entity other than its employees in soliciting or taking orders for DIRECTV SMATV Programming without the prior written consent of DIRECTV; or (iii) solicit or take any orders for programming or services provided by DIRECTV other than DIRECTV SMATV Programming. (b) Pricing and Terms. All orders for DIRECTV SMATV Programming shall be taken on the terms and conditions, including pricing, specified to Dealer in advance and in writing by DIRECTV. All pricing for Commercial SMATV Establishments shall be set forth on the SMATV Rate Card. The fee charged to the Dealer Properties for the DIRECTV SMATV Programming shall be listed separately on any invoice or bill from any other charges billed to the Dealer Property by Dealer, and such fee for the DIRECTV SMATV Programming shall be the amount charged by DIRECTV for such DIRECTV SMATV Programming. Dealer shall not charge any Dealer Property any additional fee for obtaining the DIRECTV SMATV Programming or any fee which is based upon such Dealer Property s receipt of any DIRECTV Service, it being understood that the Commission (as defined in Section 2.2(c)) is the sole compensation that Dealer is to receive from DIRECTV or an Dealer Property for any DIRECTV Service. DIRECTV reserves the right to modify the contents of the DIRECTV SMATV Programming and pricing from time to time in its sole discretion, effective upon written notice to Dealer. 2.2 Commission and Payment Structure. The following sets forth all payments and commissions to be made to Dealer as full consideration for its fulfilling its obligations hereunder. (a) Prepaid Programming Commissions. In consideration of Dealer s services in procuring activations of certain DIRECTV SMATV Programming and providing other services set forth herein for Dealer Property, DIRECTV shall pay Dealer one-time activation commissions in the form of prepaid programming commissions ( Prepaid Programming Commissions ), in the amounts and on the terms and conditions set forth in the Prepaid Programming Commission Schedule attached hereto as Schedule 2.2(a), and subject to the restrictions, chargeback terms and changes described in Sections 2.2(c), 2.2(d) and 2.2(e). The current SMATV Rate Card, additional programming and pricing information and compensation guides are available at the Dealer Center. (b) Continuing Service Fees. During the Term, DIRECTV will pay Dealer a continuing service fee ( Continuing Service Fee ) equal to the percentage of Net Receipts received by DIRECTV from the sale of certain DIRECTV SMATV Programming to each Dealer Property per month, as set forth on Schedule 2.2(b) attached hereto, subject to the restrictions, chargeback terms and changes described in Sections 2.2(c), 2.2(d) and 2.2(e). The Continuing Service Fee is based on the type of DIRECTV SMATV Programming services listed on the compensation guide, made available at the Dealer Center. (c) Commission Exclusion. As used herein, Prepaid Programming Commissions and Continuing Service Fees shall be referred to collectively as Commission. Notwithstanding anything to the contrary in this Agreement, DIRECTV shall not be obligated to pay, and Dealer shall not earn, or be entitled to receive, any Commission or payment of any other type from DIRECTV which is: (i) for orders, sales, renewals or continuations of DIRECTV SMATV Programming taken, made or received after the last day of the Term, regardless of the cause for termination; (ii) based on revenues, and any applicable taxes or fees of any type, 81401v1 3

4 received in connection with any programming other than DIRECTV SMATV Programming; (iii) for DIRECTV SMATV Programming orders which are not transmitted to DIRECTV in accordance with the requirements of this Agreement unless and until, and only for the periods after, such requirements are fully met; (iv) for any DIRECTV SMATV Programming order from an establishment that does not qualify as a SMATV Establishment, regardless of whether such order is accepted by DIRECTV; (v) for any DIRECTV SMATV Programming order that is not accepted for any reason by DIRECTV or (vi) for any DIRECTV SMATV Programming order, if Dealer provided in connection with the provision of such DIRECTV SMATV Programming, any DIRECTV Service through the SMATV System not set forth on the SMATV Rate Card. Dealer acknowledges and agrees that DIRECTV shall have the right to offset any money due to DIRECTV from Dealer for any reason (including, without limitation, because Dealer should not have been paid such Commission or to reimburse DIRECTV for any Commission previously paid to Dealer by DIRECTV on account of subscription fees paid by an Dealer Property that DIRECTV subsequently refunded or credited to such Dealer Property or Dealer, as the case may be) against any Commission or other money otherwise due to Dealer from DIRECTV. (d) Chargebacks. All Prepaid Programming Commissions are based upon a full uninterrupted purchase of the DIRECTV SMATV Programming by the Dealer Property, and are subject to chargeback if a Chargeback Event occurs within certain periods prescribed by DIRECTV (the Chargeback Periods ), as set forth in Schedule 2.2(d) Chargeback Event shall be deemed to have occurred if, during the applicable Chargeback Period (i) a Dealer Property (whether initiated by the Dealer Property or DIRECTV) terminates, cancels or disconnects DIRECTV Service, (ii) the Dealer Property downgrades the DIRECTV SMATV Programming, or (iii) the Dealer Property fails to pay DIRECTV for the DIRECTV SMATV Programming for which Dealer was paid a Prepaid Programming Commission during the entire Chargeback Period. If a Chargeback Event occurs, DIRECTV may chargeback to Dealer all or a portion of the Prepaid Programming Commission in accordance with the chargeback rules, which may be amended from time to time by DIRECTV. (e) Changes. Dealer acknowledges that the market for multi-channel video and entertainment services is competitive and unpredictable and that DIRECTV may need to adapt its marketing cost structure to changing conditions from time to time. Accordingly, DIRECTV may change the Prepaid Programming Commissions, Continuing Service Fees, and any other compensation or commissions or the terms and conditions of chargebacks at any time, and from time to time, in its sole discretion; provided that DIRECTV shall give Dealer at least thirty (30) days prior notice of the effective date of any such change. (e) Payment of Commissions. The Commissions will be paid within sixty-five (65) days after the accounting month, as such accounting month is determined by DIRECTV, in which DIRECTV receives the Net Receipts. 2.3 Order Transmission. Immediately after Dealer takes an order for DIRECTV SMATV Programming from a SMATV Establishment, Dealer shall forward to DIRECTV, in accordance with written instructions provided by DIRECTV to Dealer, all Subscriber Information pertaining to that SMATV Establishment and provide notice that such SMATV Establishment s DIRECTV Equipment is ready for activation. Only after receiving and accepting an order from Dealer shall DIRECTV establish a pending account for the SMATV Establishment and arrange for the necessary authorization messages. Any repeated failure to so provide such information shall be a material breach of this Agreement. If Dealer fails to provide such information, accurately and completely, with respect to any order, then DIRECTV may immediately suspend or terminate the DIRECTV Service and DIRECTV shall not be obligated to pay Dealer any Commission for such order, regardless of whether DIRECTV ultimately provides any DIRECTV SMATV Programming to the SMATV Establishment to which such order pertained and regardless of whether DIRECTV receives any payments as consideration for such DIRECTV SMATV Programming, unless and until DIRECTV receives such Subscriber Information and, then, only for periods of time following such receipt by DIRECTV. 2.4 Billing; Collection of Subscription Fees. After receiving an authorization request from Dealer as provided in Section 2.3 above, DIRECTV shall, upon approval of such request, establish a pending account for the 81401v1 4

5 SMATV Establishment, arrange for the necessary authorization messages to the SMATV Establishment upon activation, and be solely responsible for all billing/statement activities related to such SMATV Establishment for DIRECTV SMATV Programming. 2.5 Provision, Installation and Maintenance of Hardware; Disclaimer of Warranty. (a) Provision, Installation and Maintenance. Dealer shall, at its sole cost and expense: (i) sell, lease or rent the DIRECTV Equipment and/or other parts of the DIRECTV SMATV System, and, if requested, MATV Systems, to SMATV Establishments at commercially reasonable prices; (ii) offer to install and, if such offer is accepted, actually install at a commercially reasonable price and in a timely manner all DIRECTV Equipment and/or other parts of the DIRECTV SMATV System and any MATV System which Dealer sells, leases or rents to any Dealer Properties; (iii) offer to maintain and, if such offer is accepted, actually maintain at commercially reasonable prices, all DIRECTV Equipment and/or other parts of the DIRECTV SMATV System and MATV Systems that Dealer sells, leases or rents to any Dealer Properties; and (iv) provide, at a commercially reasonable price and in a manner satisfactory to DIRECTV, customer service to all Dealer Properties related to the lease, sale, installation and maintenance of the DIRECTV Equipment, DIRECTV SMATV System and MATV Systems. (b) Purchase of DIRECTV Equipment. DIRECTV, at its sole discretion, may from time to time offer buydown promotions to subsidize the purchase of DIRECTV Equipment by Dealer. Dealer will be notified of such promotions as they are made available by DIRECTV at the Dealer Center and Dealer s purchase of such DIRECTV Equipment and participation in any buydown program shall be subject DIRECTV s Policies and Procedures for the buydown program described at the Dealer Center, which may include chargeback rights. Subject to any buydown program and chargeback rights, any fees Dealer collects from Dealer Properties which are related to the purchase, lease or rental of DIRECTV Equipment itself or the installation or maintenance thereof, shall be the sole property of Dealer. (c) Compliance with Technical Specifications. In selling, installing and maintaining DIRECTV Equipment and/or other parts of the DIRECTV SMATV System, Dealer shall comply with all applicable DIRECTV Equipment manufacturers policies as set forth by such DIRECTV Equipment manufacturers. In selling, installing and maintaining each DIRECTV SMATV System, Dealer shall ensure that such DIRECTV SMATV System design and installation complies with DIRECTV s technical specifications (the Technical Specifications ) and guidelines which are set forth by DIRECTV from time to time for DIRECTV System Level 3 Commercial Installers. Any failure to comply with the Technical Specifications or such other specifications and guidelines described above, shall constitute a material breach of this Agreement. (d) Other Equipment. Dealer shall similarly be solely responsible for the acquisition and installation of all other equipment and services necessary to allow Dealer Properties to receive DIRECTV SMATV Programming. In addition, Dealer may be required by DIRECTV to provide occasional DIRECTV-related System service (i.e., receiver re-tuning due to channel position realignment, access card switch-outs, etc.). DIRECTV shall provide Dealer with reasonable notice of such service request and shall provide Dealer with a reasonable period of time to complete such service. Dealer may not charge the Dealer Property for such service. Any refusal by Dealer to perform such occasional DIRECTV-mandated service shall constitute a material breach of this Agreement. (e) DISCLAIMER. AFFILIATE UNDERSTANDS AND AGREES THAT DIRECTV HAS NO RESPONSIBILITY WHATSOEVER FOR THE DIRECTV EQUIPMENT AND THAT DIRECTV HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, IN CONNECTION WITH THE DIRECTV EQUIPMENT. (f) Restrictions on DIRECTV SMATV System. Dealer may not construct or purchase any DIRECTV SMATV System or otherwise provide any video programming through any means which utilizes public easements, crosses public rights of way or similar land rights or in any way operate a video programming service which could subject Dealer or DIRECTV or any of their respective subsidiaries or affiliates, directly or indirectly, 81401v1 5

6 to any federal, state or local cable operator regulations. A violation of this Section 2.5(f) shall be a material breach of this Agreement. 2.6 DIRECTV SMATV Programming. As between Dealer and DIRECTV, DIRECTV shall have the sole right to edit, select, schedule, package and price all DIRECTV SMATV Programming and all other DIRECTV Services. Dealer agrees that all DIRECTV SMATV Programming (including any commercial insertion) shall be exhibited in its entirety, in original form, as provided by DIRECTV, without any modifications, additions or deletions. Commercial SMATV Properties shall only be provided the DIRECTV SMATV Programming listed on the SMATV Rate Card. Dealer s failure to comply with this Section shall constitute a material breach of this Agreement by Dealer. 2.7 Policies and Procedures. Dealer shall comply with the standard policies and procedures DIRECTV may promulgate for its SMATV Establishment affiliate operators, including written notices, guidelines, and bulletins, as amended from time to time (collectively, the DIRECTV Policies and Procedures ). As DIRECTV s commissioned sales representative, Dealer hereby agrees that it will follow and abide by the DIRECTV Policies and Procedures related to taking subscription orders for and the promotion of DIRECTV SMATV Programming as specified from time to time by DIRECTV. The DIRECTV Policies and Procedures will specify, among other things, authorization procedures, receivables payment and security enforcement procedures and the responsibilities of Dealer related to taking subscription orders. Additionally, as a wholly owned subsidiary of AT&T, Inc., DIRECTV and its customers, operators, suppliers, affiliates and agents are bound by AT&T s Dealer Information Security Requirements ( DISR ). Dealer shall comply with all applicable provisions of the DISR as contained in Schedule 2.7 of this Agreement. Dealer further agrees to comply with the terms and conditions of DISR, as may be changed from time-to-time by AT&T and/or DIRECTV in their sole discretion. Dealer shall cooperate fully with AT&T and DIRECTV, including by completing checklists or similar documentation, to ensure that Subscriber Information, AT&T and/or DIRECTV Derived Information, Software and/or computer systems Dealer develops, designs, supports and/or uses under this Agreement comply with the standards and requirements set forth in DISR. Dealer shall protect DIRECTV customer data by establishing, implementing and maintaining (i) a comprehensive written information security program reasonably designed to protect the security, confidentiality and integrity of DIRECTV customer data; and (ii) a written program for combating identity theft in connection with Dealer s use of DIRECTV customer data, either as a component of its information security program or on a stand-alone basis. 2.8 DIRECTV Data And Derived Data (Big Data). As a wholly owned subsidiary of AT&T, Inc., DIRECTV and its operators, suppliers and agents are bound by AT&T s policies regarding the collection, utilization, storage, handling of and disposal of confidential DIRECTV information, DIRECTV employee or DIRECTV customer information. Dealer shall comply with the following DIRECTV Data and Derived Data Policy. (a) Definitions. (i) AT&T Data Assets means data to which Dealer has access to in connection with this Agreement that is either from or regarding DIRECTV, AT&T, AT&T and/or DIRECTV customers or AT&T s and/or DIRECTV s network; provided, however, that the term AT&T Data Assets does not include any data that came to be in the possession or control of Dealer by a lawful manner outside the scope of this Agreement and independent of Dealer s relationship with DIRECTV and/or AT&T, including customer data obtained by Dealer to provide services outside the scope of this Agreement, even if such data is otherwise identical to AT&T Data Assets and even if the source of such data was an AT&T or DIRECTV customer. Notwithstanding the forgoing, Dealer shall otherwise comply with the relevant provisions of this Agreement. (ii) AT&T Derived Information means information that Dealer derives by processing AT&T Data Assets, either alone or in combination with other data v1 6

7 (b) Rights and Obligations. (i). AT&T Derived Information (1) Prohibitions. Except as expressly permitted in or required by this Agreement, Dealer (which, for purposes of this clause, includes Dealer s affiliates, agents, suppliers and contractors) is prohibited from the following: (A) (B) Processing, using or disclosing AT&T Data Assets, or Creating, processing, using or disclosing AT&T Derived Information. (2) Notice. Dealer shall promptly notify DIRECTV if Dealer reasonably believes that any of the Prohibitions in this subsection may have been violated. (3) Rights & Ownership. Except as expressly provided to the contrary in this Agreement, as between DIRECTV and Dealer, DIRECTV owns all rights in and to AT&T Data Assets and AT&T Derived Information. Dealer hereby assigns to DIRECTV all right, title and interest it may have in such AT&T Derived Information. Further, upon DIRECTV s request, Dealer shall promptly provide all or any requested portion of such AT&T Derived Information and provide written certification within fifteen (15) business days to DIRECTV that such AT&T Derived Information has been returned. DIRECTV is not transferring or granting to Dealer any right, title, or interest in or to (or granting to Dealer any license or other permissions in or to) any or all AT&T Derived Information, including any right by Dealer to use the AT&T Derived Information. (4) Destruction. Except as expressly prohibited by law, within ten (10) business days of the later of the expiration or termination of this Agreement or the completion of any requested termination assistance services, Dealer shall destroy any and all AT&T Data Assets or AT&T Derived Information including any copies remaining in Dealer s possession or under Dealer s control, and deliver to DIRECTV written certification of such destruction signed by an authorized representative of Dealer. (c) AT&T Data Assets Savings Clause. With regard to the types of data within the definition of AT&T Data Assets, this section is intended to supplement, but not to amend or alter, the other applicable provisions of this Agreement (e.g., provisions related to AT&T Information, Customer Information, DISR, Restricted Activities, etc.). (d) Applicability. The provisions of this Section shall apply to all AT&T Data Assets and AT&T Derived Information, regardless of whether such data and information was first received, collected, or created by Dealer before, on, or after the Effective Date of this Agreement. Dealer agrees to comply with the terms and conditions of the DIRECTV Data and Derived Data Policy, as may be changed from time-to-time by DIRECTV and/or AT&T in their sole discretion and without requiring Dealer s written consent. A breach by Dealer of any obligation set forth in this Section 2.8 shall constitute a material breach of this Agreement. 2.9 Exclusivity. Dealer hereby agrees that from the Effective Date until expiration or termination of the Term, Dealer shall not, directly or indirectly offer, sell or solicit sales of, take orders for, or provide or install equipment for, any television programming or other related services available for delivery and receipt at a SMATV Establishment, other than DIRECTV SMATV Programming; provided, however that this exclusivity requirement shall not apply to the sale by Dealer of programming that is not included on the applicable SMATV Rate Card, if any; provided, further, that Dealer agrees that in the event that such programming is included on the applicable SMATV Rate Card by DIRECTV, Dealer agrees that it shall use commercially reasonable efforts to convert said programming to the DIRECTV platform within one hundred twenty (120) days of said programming being included on the SMATV Rate Card. Dealer acknowledges and is aware that certain DIRECTV Equipment and related equipment necessary for the performance of the parties obligations hereunder is designed solely for use by commercial customers, and is not generally offered to the retail public. Dealer further agrees that from the Effective Date until expiration or termination of the Term, Dealer shall not, directly or indirectly, offer, sell or solicit sales of, take orders for or provide or install such non-retail equipment to retail or non-commercial 81401v1 7

8 purchasers or to other parties intending to sell such equipment to retail or non-commercial purchasers. A breach by Dealer of any obligation set forth in this Section 2.9 shall constitute a material breach of this Agreement Intellectual Property. (a) DIRECTV shall provide Dealer with a logo and trademark usage manual ( Usage Manual ) (which may be amended by DIRECTV from time to time in its discretion) that specifies the permitted uses of DIRECTV s service marks, trademarks, and other commercial symbols ( Marks ). Dealer may use the Marks only in accordance with the provisions of this Agreement and the Usage Manual. Dealer shall not use any logo, trademark, service mark or trade name of any supplier of DIRECTV (including, without limitation, entities providing programming to DIRECTV) for any purpose except as expressly permitted by such supplier. Dealer shall not acquire any right to any goodwill, Mark, copyright, or other form of intellectual or commercial property of DIRECTV, except for the limited use rights expressly granted herein. (b) Dealer shall strictly comply with any and all written instructions from DIRECTV with respect to use of the DIRECTV Marks. (c) DIRECTV Marks. Dealer agrees to maintain separate brand identities for the Dealer trademarks and the (d) Dealer shall not use the DIRECTV Marks or name in any manner outside the scope of this Agreement without the prior written approval of DIRECTV. (e) Dealer admits the validity of each DIRECTV Mark and acknowledges that each DIRECTV Mark is a valuable asset of DIRECTV. Dealer agrees not to challenge the title or any rights of DIRECTV in and to any DIRECTV Marks, either during or after the Term. Dealer also agrees that any and all rights and goodwill that may arise by the use of the DIRECTV Marks by Dealer shall inure to the sole benefit of DIRECTV, and Dealer shall at no time assert any claim or acquire any rights therein. Dealer agrees to execute all papers reasonably requested by DIRECTV to effect further registration of, maintenance and renewal of the DIRECTV Marks. Dealer shall not use the DIRECTV Marks or any part thereof as part of its corporate name, logo or internet/website addresses (url, domain name, etc.), or use any names, logos, internet/website addresses (url, domain name, etc.) or marks confusingly similar to the DIRECTV Marks. (f) Dealer agrees that in using any DIRECTV Marks, it will not in any way represent that it has any right, title or interest in the DIRECTV Marks other than those expressly granted under this Agreement. Dealer further agrees not to register or attempt to register in any country any name or mark, in whole or in part, resembling or confusingly similar to any of the DIRECTV Marks (including registration of domain names, internet/website addresses, etc.). Dealer shall immediately abandon any such application or registration or, at DIRECTV s sole discretion, assign it to DIRECTV. Dealer shall reimburse DIRECTV for all the costs and expenses incurred in any opposition, cancellation or related legal proceedings, including attorney s fees, initiated by DIRECTV or its authorized representative, in connection with any such registration or application. (g) In addition to any other rights it may have, DIRECTV shall have the right to terminate this Agreement immediately upon written notice to Dealer for any material breach of this Section 2.9 by Dealer Customer Service. Dealer shall provide customer service to Dealer Properties regarding the DIRECTV Equipment and DIRECTV SMATV Programming. Dealer shall maintain a reporting mechanism or procedure so that Dealer Properties and SMATV Establishments may leave messages for service with Dealer 24 hours per day, 7 days per week. Dealer shall respond to all customer service requests promptly (and in any event shall contact any Dealer Property reporting a substantial problem or concern with their DIRECTV Equipment or any part of a DIRECTV SMATV System within 24 hours of such report). Dealer shall be primarily responsible for resolution of all such customer inquiries, provided, however, after a good faith effort to address such inquiries in a 81401v1 8

9 satisfactory manner, Dealer may forward to DIRECTV s customer service organization any inquiries that Dealer is unable to resolve from Dealer Properties and SMATV Establishments regarding DIRECTV SMATV Programming Receipt of Programming. Dealer shall not resell, retransmit or rebroadcast any DIRECTV SMATV Programming or any other element of the DIRECTV Service except as specifically contemplated by this Agreement. Dealer shall only provide programming made available as part of the DIRECTV Service through a SMATV Rate Card, which for the avoidance of doubt, means that Dealer is prohibited from and may not, use a programming package, channel or service made available through DIRECTV s other business channels (such as public viewing, private viewing, business viewing and residential direct-to-home) to provide programming through a SMATV System. Dealer shall ensure that (i) each Subscriber Unit located in an Dealer Property, but no other rooms, areas or units located at such Dealer Property, receives DIRECTV SMATV Programming; (ii) DIRECTV SMATV Programming is provided to the occupants or users of individual dwelling units or office units (as applicable) located in Dealer Properties as a convenience of occupancy or use and without additional charge; (iii) each Dealer Property is equipped with its own satellite receiving dish; (iv) no Dealer Property resells DIRECTV SMATV Programming; (v) no Dealer Property retransmits or rebroadcasts DIRECTV SMATV Programming or any other element of the DIRECTV Service, except as specifically contemplated by this Agreement; and (vi) no Dealer Property makes any modification, addition, or deletion to any of the DIRECTV SMATV Programming (including any commercial insertion). Dealer s failure to comply with this Section shall constitute a material breach of this Agreement by Dealer Personnel, Training. Dealer shall allow only its employees (and not any independent contractors, sub-agents or other person on entity) to solicit, take or transmit any orders for DIRECTV SMATV Programming, absent DIRECTV s prior written consent, which may be withheld in DIRECTV s sole discretion. DIRECTV will provide training and training materials to Dealer s training personnel, as needed. Dealer shall be responsible for the subsequent training of Dealer s personnel to the satisfaction of DIRECTV. Any failure by Dealer to adequately train its personnel within thirty (30) days after notice thereof by DIRECTV shall be a material breach of this Agreement. (a) Offshore Work Prohibited. None of the obligations and services under this Agreement shall be performed or provided and no information related to this Agreement shall be collected, stored, handled or accessed by Dealer or its subcontractors at any location outside of the United States. Additionally, Dealer shall not allow any of the services under this Agreement to be performed or provided by a subcontractor unless Dealer approves such subcontractor pursuant to the Section 2.13(b) entitled Work Done by Others. (b) Work Done By Others. If any part of Dealer work is dependent upon work performed by others or subcontracted consistent with the terms herein, Dealer shall inspect and promptly report to DIRECTV any defect that renders such other work unsuitable for Dealer proper performance. Dealer silence shall constitute approval of such other work as fit, proper and suitable for Dealer s performance of its services or provision of material. Any use of, including any changes to the use of, a subcontractor must be approved by DIRECTV in writing before commencement of the work. Dealer shall provide to DIRECTV, upon request, information about the subcontractor including the identity of, the location of, and a complete description of the activities to be performed by such subcontractor. Where a portion of the work is approved to be subcontracted, Dealer remains fully responsible for performance thereof and shall be responsible to DIRECTV for the acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual obligation or other liability of DIRECTV to any subcontractor or its employees. Dealer agrees to bind every subcontractor to terms consistent with the terms of this Agreement. The subcontractor approval process is outlined in Schedule 2.13(b) attached hereto ( Subcontractor Approval Process ), which may be amended by DIRECTV, in its sole discretion, from time to time upon thirty (30) days notice to Dealer. ARTICLE III TERM AND TERMINATION 3.1 Term. The term of this Agreement (the Term ) shall commence on the Effective Date and 81401v1 9

10 continue until terminated by either party pursuant to the terms of this Article III, or until otherwise terminated pursuant to the provisions of this Agreement. 3.2 Mutual Termination Rights. Either party may terminate this Agreement, effective immediately (i) upon written notice to the other party following a material breach of this Agreement by the other party; (ii) upon the filing of a petition in bankruptcy or for reorganization by or against the other party for the benefit of its creditors, or the appointment of a receiver, trustee, liquidator or custodian for all or a substantial part of the other party s property, if such order of appointment is not vacated within thirty (30) days; (iii) upon the assignment by the other party of this Agreement contrary to the terms hereof; or (iv) upon thirty (30) days written notice. 3.3 Termination by DIRECTV. DIRECTV may also, in its sole discretion, terminate this Agreement without liability (i) within thirty (30) days written notice after the end of any calendar quarter if, during such preceding calendar quarter, Dealer failed to solicit and transmit to DIRECTV at least two (2) new SMATV Establishment orders or at least two-hundred fifty (250) new Subscriber Units, in each case which are validly accepted and activated with DIRECTV SMATV Programming by DIRECTV, (ii) within thirty (30) days written notice after the end of any calendar year if, during such preceding calendar year, Dealer failed to solicit and transmit to DIRECTV at least eight (8) new SMATV Establishment orders or at least one thousand (1,000) new Subscriber Units, in each case which are validly accepted and activated with DIRECTV SMATV Programming by DIRECTV, or (iii) within thirty (30) days written notice if DIRECTV determines, in its sole discretion, that Dealer has violated or breached the terms of Section Obligations of the Parties Upon Termination. (a) Dealer s Loss of Programming Relationship and Notification Obligations. Following termination of this Agreement, (i) Dealer shall no longer have any right to provide or be involved in the provision of the DIRECTV SMATV Programming nor bill or collect for any DIRECTV SMATV Programming, (ii) Dealer shall direct all SMATV Establishment and Dealer Property inquiries regarding the DIRECTV SMATV Programming to DIRECTV (or such other party as specified by DIRECTV), (iii) DIRECTV may notify the Dealer Properties that Dealer s relationship with DIRECTV has terminated and direct all inquiries relating to DIRECTV SMATV Programming to DIRECTV (or such other party as specified by DIRECTV), and (iv) within ten (10) days of any request by DIRECTV, Dealer shall send written notices (if Dealer bills and collects any fees for DIRECTV SMATV Programming any such notice shall provide that the Dealer Property shall cease paying Dealer for such programming and start paying DIRECTV) to all Dealer Properties notifying them that Dealer s relationship with DIRECTV has terminated and referring all inquiries relating to DIRECTV SMATV Programming to DIRECTV (or such other party as specified by DIRECTV). The form and substance of such notification shall be subject to DIRECTV s prior written approval. (b) DIRECTV s and Dealer s Obligations with Respect to Dealer Properties. Following the termination of this Agreement, (i) DIRECTV may, at its sole discretion, continue to deliver DIRECTV SMATV Programming to Dealer Properties (any such delivery shall be subject to DIRECTV s then-existing requirements for the provision of programming, as DIRECTV determines in accordance with its sole and absolute discretion, and any other terms to be mutually agreed upon between the former Dealer Property and DIRECTV), (ii) if Dealer is collecting any fees for the DIRECTV SMATV Programming, at the election of DIRECTV, until DIRECTV can assume billing and collection activities, a receiver may be appointed by DIRECTV or a bank account may be established by DIRECTV, so that such funds go directly to such account and not to Dealer, (iii) DIRECTV or a substitute SMATV System affiliate may enter into a new agreement with the former Dealer Property for the continued delivery of DIRECTV SMATV Programming, (iv) if requested by DIRECTV, Dealer shall cooperate with DIRECTV to enable DIRECTV or a substitute SMATV System affiliate to perform and complete all installations and activations ordered by Dealer Properties prior to the termination of this Agreement according to the regular installation and activation schedule Dealer used during the Term, and (v) for a reasonable transition period, not to exceed the expiration of an Dealer Property s SMATV Terms of Service, Dealer shall not impair the ability of any SMATV Establishments to continue to receive DIRECTV SMATV Programming nor shall Dealer 81401v1 10

11 impede in any manner whatsoever DIRECTV s continued access (via the DIRECTV SMATV System) to deliver DIRECTV SMATV Programming to the former Dealer Property. The parties understand and agree that Dealer may have entered into separate service agreements or other agreements with an Dealer Property. Dealer s right to service equipment, subject to this Section 3.4, shall be separate and distinct from the provision of DIRECTV SMATV Programming. ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS 4.1 Dealer. Dealer hereby represents, warrants and covenants that it: (a) Shall promptly upon execution of this Agreement, obtain training and certification to become a DIRECTV System Level 3 Commercial Installer (as specified and certified by DIRECTV), and shall, upon receipt of such certification, remain in good standing as such throughout the Term; (b) Shall, throughout the Term, comply with and abide by (i) any and all applicable federal, state and local laws, rules, regulations and ordinances; and (ii) upon notice thereof, any and all agreements and/or requirements as may be requested by providers of programming services, each as applicable to Dealer and its employees and agents in connection with the performance of its obligations pursuant to this Agreement; (c) Shall, at its sole expense, provide and maintain all facilities, vehicles, tools and equipment ( Dealer Equipment ) as may be necessary and proper for performing its obligations pursuant to this Agreement, and keep all Dealer Equipment in good working order and repair at all times; (d) Shall, at its sole expense, obtain all permits and licenses which may be required under any applicable federal, state or local law, rule, regulation or ordinance to perform its obligations pursuant to this Agreement; (e) Shall pay and discharge all license fees and business, use, sales, gross receipts, income, property or other taxes or assessments which may be charged or levied upon Dealer by reason of the performance of its obligations pursuant to this Agreement; attitude; (f) Shall, at all times throughout the Term, present a professional business appearance and (g) Shall not engage in any activity or business transaction which could be considered unethical, as determined by DIRECTV in its sole discretion, or damaging to DIRECTV s image, goodwill or business; and (h) Shall maintain throughout the Term, at Dealer s sole expense, adequate professional, general and motor vehicle liability insurance policies, of levels and with companies satisfactory to DIRECTV in its sole discretion, and within ten (10) days following the execution of this Agreement, and thereafter upon request by DIRECTV, provide proof of such insurance (copies of policies or certificates) naming DIRECTV as an additional insured and providing no less than thirty (30) days advance written notice of cancellation or change in such policies. Dealer s insurance requirements are contained in Schedule 4.1(h) to this Agreement. Dealer s insurance obligations may be changed, modified or amended by DIRECTV, in its sole discretion, from time to time without Dealer s consent. 4.2 DIRECTV. DIRECTV hereby represents, warrants and covenants that it shall: (a) Comply with any and all applicable federal, state and local laws, rules, regulations and ordinances applicable to DIRECTV and its employees and agents relating to DIRECTV s obligations pursuant to this Agreement; and 81401v1 11

12 (b) At its sole expense, obtain all permits and licenses which may be required under any applicable federal, state or local law, rule, regulation or ordinance to perform its obligations pursuant to this Agreement. 5.1 Proprietary Information. ARTICLE V ADDITIONAL RIGHTS AND OBLIGATIONS (a) Except as otherwise provided for in this Agreement, without the express written consent of a party (the Providing Party ) (which may be granted or withheld in the Providing Party s sole discretion), the other party (the Receiving Party ) shall not use, other than as necessary to comply with the terms of this Agreement, and shall not provide or sell to any third party, any Providing Party Information, other than as set forth in Section 5.1(b) below. Providing Party Information shall mean any copies, in whatever form (paper, computer files etc.), of the Providing Party s intellectual property, customer information or any other information obtained by the Receiving Party in connection with this Agreement or the actions contemplated hereby, whether provided by the Providing Party, or derived independently or otherwise, including, without limitation: (i) all customer lists and other information related to customers ordering any DIRECTV Services; (ii) all market information and studies and marketing information; and (iii) all information pertaining to purchasers, renters or lessees of DIRECTV Equipment from Dealer. Immediately upon the Providing Party s written request (which request the Providing Party may make, as a specific or general request, in its sole discretion at any time up to one year after the last day of the Term), the Receiving Party shall provide to the Providing Party (or destroy if the Providing Party so requests) all requested Providing Party Information. Notwithstanding the foregoing, DIRECTV shall be entitled to use for any purpose and shall not be required to provide to Dealer or destroy any records or information pertaining to Dealer Properties. (b) In addition, the parties agree that, except as otherwise provided for in this Agreement, they and their employees have maintained and will maintain in confidence the terms and provisions of this Agreement, as well as all of the Providing Party Information of the other party and all of the written data, summaries, reports, other proprietary information, trade secrets and information of all kinds, acquired, devised or developed in any manner from the other party s personnel or files or pursuant to this Agreement (the Confidential Information ), and that they have not and will not reveal the same to any persons not employed by the other party except: (i) at the written direction of the other party; (ii) to the extent necessary to comply with the law or the valid order of a court of competent jurisdiction, in which event the disclosing party shall so notify the other party as promptly as practicable (and, if possible, prior to making any disclosure) and shall seek confidential treatment of such information, or in connection with any arbitration proceeding; (iii) as part of its normal reporting or review procedure to its parent company, its auditors and its attorneys, and such parent company, auditors and attorneys agree to be bound by the provisions of this Section 5.1; (iv) in order to enforce any of its rights pursuant to this Agreement; (v) in the case of DIRECTV, to current or potential investors, insurers, financing entities, or to any entity engaged in DIRECTV s business; provided, however, that such person described above agrees to be bound by the provisions of this Section 5.1; (vii) if, prior to the time of disclosure, the Confidential Information is in the public domain or is otherwise validly known to the intended recipient; or (viii) after the Confidential Information becomes part of the public domain by written publication through no fault of the party revealing such Confidential Information. The parties further agree to maintain any oral information which would be Confidential Information if reduced to writing as confidential in accordance with standard industry practice (subject to the foregoing exceptions for Confidential Information). (c) Press Release. During the Term, neither party shall issue an independent press release with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the other party. 5.2 Compliance with Law. Each party shall comply with all applicable governmental statutes, laws, rules, regulations, ordinances, codes, directives, and orders (whether federal, state municipal or otherwise) and each party is solely responsible for the compliance with all such laws arising out of or relating to its obligations under 81401v1 12