without limitation any implied warranties of merchantability or fitness
for a particular purpose. Buyer's sole and exclusive remedy for any breach
by Seller of any of the warranties set forth herein shall be for Seller to
make such repairs and/or replacements necessary to fulfill such
warranties. in no event shall seller be liable for any loss of audio,
video or data signals, interruption of business, or special, indirect or
consequential damages of any kind or nature whatsoever. Seller shall not
be responsible for delays in performing its obligations under this Article
resulting from Buyer's negligence or fault.
13. Nonwarranty Repairs and Spares Support
(a) Until the earlier of (i) _______ years from the Acceptance of the
System, or (ii) the date Buyer Ceases to Operate the System, Seller shall
offer to provide repair services and/or spare parts for the System
("Support Period"), it being understood that Seller's charges for spare
parts and/or repairs not covered by warranty shall be at Seller's then
current time and material rates or spare parts prices and shall be
invoiced as soon as work involved is completed. Seller shall have no
obligation hereunder or otherwise to provide further spare parts or repair
services to any person that has failed to pay promptly for any such spare
parts or repairs.
(b) Subsequent to the Support Period, Seller may discontinue offering
spare parts and/or repair services for the System upon _________ months
prior written notice to Buyer of Seller's intended discontinuance,
provided however, that Seller, at Seller's option, either (i) grants to
Buyer a nonexclusive license to make or have made for Buyer's own use and
not for sale any such System components (exclusive of the Control Computer
and its operating system software) and furnishes Buyer all necessary
documentation, specifications, drawings and other data, or (ii) allows
Buyer the opportunity to purchase sufficient quantities of spare parts as
Buyer deems necessary to maintain and support the System.
(c) For purposes of this Contract, Buyer shall cease to operate the
system if Buyer does not use the System furnished by Seller as part of the
regular use on a regularly used satellite transponder to encode and decode
signals.
14. Extended Maintenance
Prior to the expiration of the warranty period for the System set
forth in this Contract, Seller and/or its designated service provider
shall offer to Buyer the opportunity to enter into an extended maintenance
contract with respect to the System (including the related Control
Computer software but excluding the Control Computer hardware platform),
renewable for successive and consecutive ________ year periods. Seller and
Buyer shall discuss proposals for establishing a service center in ______,
with the participation of Buyer, for the servicing of the system. Seller
and Buyer shall also discuss proposals for future joint cooperation on
other projects within China.
15. System Licenses and Condition Precedent to Effectiveness
(a) The Control Computer's operating system software is provided to
Buyer under the terms and conditions of a sublicense from the operating
system licensor, as set forth in Annex F herein.
(b) All Seller's software required for operation of the System and the
system is provided to Buyer under the license set forth in Annex E herein.
(c) No technology transfer or assignment is granted under this
Contract with respect to any products, or systems owned by Seller or any
proprietary rights owned or sublicensed by Seller. No right to grant
sublicenses is granted or is to be inferred or implied under this
Contract.
(d) Relevant PRC regulations may require Buyer to obtain the approval
of the Ministry of Foreign Trade and Economic Cooperation ("MOFTEC") as a
precondition for the effectiveness of (a) the sublicense of the Control
Computer's operating system software to Buyer from the operating system
licensor, as set forth in Annex F herein and (b) the license of Seller's
software which is required for operation of the System, to Buyer as set
forth in Annex E herein (collectively, the "Annexes"). Within _________
working days of the execution of the Contract, Buyer and Seller will
jointly confer with MOFTEC to determine whether MOFTEC's approval is
required for the effectiveness of the Annexes. If MOFTEC informs Buyer and
Seller to the satisfaction of Buyer and Seller that the Annexes do not
require its approval, the Contract shall become effective upon such
communication. If, on the other hand, MOFTEC informs Seller and Buyer that
the issuance of its approval is a precondition for the effectiveness of
the Annexes, then this Contract shall become effective only upon the
issuance of such approvals.
If the foregoing conditions are not fulfilled within ________ days
after the Contract execution date and Buyer and Seller do not agree in
writing to waive such condition or to extend the time for its fulfilment,
the Seller shall in such event be entitled to terminate the Contract
forthwith and neither Party shall have any further obligations or
liability towards the other Party under this Contract.
16. System Security Requirements
The parties shall agree to institute a System security plan for the
System, which plan outlines security procedures that will be established
and maintained in order to prevent theft or other compromise of the System
during the shipment, storage, operation or any other phase of the parties'
activities in connection with this Contract, including the warranty and
post-warranty periods. Buyer agrees to adopt and comply with and/or cause
its agents to adopt and comply with reasonable alternate or additional
security requirements Seller may from time to time recommend.
17. Equipment Order Lead Times
Delivery dates for the equipment which is the subject of this Contract
appear in Annex B. Order lead times required for additional equipment are
as follows: (sketch)
Buyer will provide a rolling ________ month forecast of equipment
desired for delivery. The first ________ months of this forecast are to be
considered firm orders, subject to cancellation penalties set forth in
Annex C.
18. Mutual Representations
Each party represents and warrants that:
(a) It is duly organized and registered and in good standing in its
state or country and has power and authority to enter into and perform
this Contract and any other agreements and documents executed or delivered
by it in connection herewith (collectively, with this Contract, "the
Documents").
(b) Its execution, delivery and performance of the Documents have been
duly authorized by all necessary action.
19. Confidentiality
(a) Buyer agrees that any information or data such as Seller' s
drawings and software (including, without limitation, designs, reports,
software documentation, manuals, models, and the like), revealed by Seller
to Buyer and containing proprietary information marked or identified as
"proprietary" or "confidential" shall be maintained in confidence by Buyer
with at least the same care and safeguards as are applied to Buyer's own
proprietary information, but in no event with less than reasonable care.
Such information or data shall not be duplicated, disclosed to others, or
used without the written permission of Seller. These obligations shall not
apply to any information or data which is in or comes into the public
domain without violation of this provision; or is received lawfully by
Buyer from a third party; or is developed by Buyer independently and
without benefit of the information or data received from Seller. Seller
shall have no obligation to provide confidential or proprietary
information.
(b) Buyer's obligations under this clause shall remain in effect for
_______ years after this Contract is signed by the Seller and Buyer. All
tangible forms of Seller's proprietary information delivered by Seller to
Buyer shall be and remain the property of Seller, and shall be returned to
Seller upon Seller's request.
(c) Except as expressly provided herein, it is agreed that no license
under any patents, trade secrets or copyrights of Seller is granted to
Buyer by the disclosure of Seller's confidential or proprietary
information.
(d) Neither party shall use the name or the name of any trademark or
trade name (or symbolic representation thereof) of the other party or its
parent, subsidiaries or other affiliates, in marketing, advertising,
public relations efforts or in any other manner without the express
written consent of such other party in each instance, which consent shall
not unreasonably be withheld or delayed.
20. Indemnification
(a) Each party shall indemnify and hold harmless the other party, its
shareholders, directors, officers, employees, agents, designees and
assignees, or any of them, from and against all losses, damages,
liabilities, expenses, costs, claims, suits, demands, actions, causes of
actions, proceedings, judgments, assessments, deficiencies and charges
(collectively, "Damages") caused by, relating to or arising from the
performance by such party in accordance with this Contract of its
obligations hereunder, and Buyer shall also indemnify Seller, without
limiting the foregoing, for any such item caused by, relating to or
arising from (a) the programming services which are authorized for viewing
using the System, including any assertion that any such programming
service involves copyright infringement, (b) any disputes between Buyer
and any of its program distributors or other distributors or affiliates,
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