Home Services Provider Agreement

Exhibit 10.37 CONFIDENTIAL TREATMENT REQUESTED - EDITED COPY

**** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended. Omissions are designated as [****]. DIRECTV, INC.
2007 HOME SERVICES PROVIDER AGREEMENT This Home Services Provider Agreement (including all Exhibits and Schedules hereto, this " Agreement" ) is entered into this first (15t) day of May, 2007 (the " Effective Date" ), between DIRECTV, Inc ., a California corporation (" DIRECTV" ), and Mountain Satellite, Inc . (" Contractor" ). DIRECTV and Contractor may also be collectively referred to herein as the " Parties." RECITALS A. DIRECTV is a provider of direct broadcast satellite (" DBS" ) services to consumers which include video, audio, data and other programming delivered via specialized satellite receiving equipment. B. DIRECTV is also engaged in the business of selling digital satellite system equipment consisting of a satellite antenna (including the LNB) and an integrated receiver/decoder (including a remote control) (" DIRECTV System" ), which is compatible and fully operable with DIRECTV' s DBS services. C. DIRECTV and Contractor entered into that certain Sales Agency Agreement, as amended from time to time (the " Sales Agency Agreement" ), whereby Contractor became and continues to act as a commissioned sales agent of DIRECTV in connection with DIRECTV' s DBS services. D. In addition, Contractor is engaged in the business of installing, servicing and maintaining various consumer electronic products, including satellite systems. E. On December 29, 2000, DIRECTV engaged Contractor to perform installation and service work with respect to the DIRECTV System (including any associated products DIRECTV and Contractor agree that Contractor shall install) sold and rented by DIRECTV and to perform other services pursuant to the specific terms of that Home Services Provider Agreement dated December 29, 2000 (the " Original Agreement" ). F. The Original Agreement has been amended as well as wholly replaced from time to time by the Parties, the last replacement date being June 1, 2005 (the " 2005 HSP Agreement" ). The Parties desire that the current 2005 HSP Agreement be terminated pursuant to the terms and conditions hereunder and be replaced with this 2007 Home Services Provider Agreement (the " Agreement" ) as of the Effective Date; provided, however, that all covenants, conditions, rights and obligations of both DIRECTV and Contractor which, by their terms or nature extend beyond the termination or expiration of the 2005 HSP Agreement, shall survive its termination until fully performed. **** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.
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NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: AGREEMENT 1. Appointment of Contractor . a. Authority . DIRECTV hereby engages Contractor to provide services in the installation and maintenance of DIRECTV System Hardware (the " Services," or " Fulfillment Services" when referring specifically to initial customer installation services only) as defined herein and as identified in Exhibit l.a.i. , attached hereto for DIRECTV customers located in areas specified in Exhibit 1.a.ii. attached hereto, which services shall be performed in accordance with this Agreement and a Work Order (as defined below) issued by DIRECTV in connection therewith. Additional installation and/or maintenance services for DIRECTV-related products, other products (each such service an " Additional Service" ), shall be individually defined in a separate Statement of Work, the rates for such Additional Services included, and shall be attached hereto and incorporated herein as Exhibit l.a.iii . Throughout the Term, this Agreement may be amended by mutual agreement of the parties to include further Additional Services and such Additional Services shall be provided by Contractor pursuant to the terms and conditions as shall be set forth herein (Additional Services shall be referred to as " Services" throughout this Agreement). For purposes of this Agreement, a " Work Order" shall mean an individual order issued by DIRECTV for each Service, or series of Services. Each Work Order shall be subject to the terms of this Agreement and the requirements of each applicable Statement of Work attachment. b. Limitation . Nothing herein shall be construed to grant Contractor any right or authority to sell, solicit or take orders for DIRECTV' s DBS service, or otherwise act as a sales agent or an agent of DIRECTV, or sell or rent a DIRECTV System either on its own behalf or on behalf of DIRECTV. c. Commencement of Work. Notwithstanding any other provision herein, Contractor may perform Services only upon: (i) receipt of a written or electronic Work Order from DIRECTV or its authorized agent; (ii) receipt of the DIRECTV System specifically identified by DIRECTV for the DIRECTV customer, or notification that the DIRECTV customer has received the DIRECTV System; (iii) coordination by Contractor directly with the DIRECTV customer for the earliest convenient time to perform the applicable Services in connection with the DIRECTV System and agreed upon hardware and antenna placement (subsequent to the scheduling of the appointment window by DIRECTV); and (iv) confirmation by Contractor to DIRECTV of receipt of the Work Order and scheduled time for provision of applicable Services. Under no circumstances, however, shall Contractor delay the provision of any Services hereunder, or the scheduling of such Services appointment, for the convenience of Contractor and/or its employees or agents. Initial appointment coordination by Contractor with the DIRECTV customer shall also be used by Contractor to identify any potential line of sight, landlord/tenant or other issues such that the technician shall be provided with all necessary equipment or DIRECTV forms in order to be able to properly complete the Work Order. Furthermore and in accordance with the Statement of Work and the Policies and Procedures, as defined in Section 2.f., Contractor shall, on the morning of the scheduled appointment, contact each applicable DIRECTV customer with a reminder telephone call regarding the time of the scheduled appointment. d. Work Orders . Contractor shall perform and provide the Services hereunder in accordance with this Agreement, the applicable Work Order issued by DIRECTV or its authorized agent and the applicable Statement of Work(s) as set forth in Exhibit 1.a.iii . e. Reservation of Rights . Contractor expressly acknowledges and agrees that all rights in and to the satellite transmission of DIRECTV' s DBS services, the DIRECTV System and the renting, sale, installation and maintenance of the DIRECTV System are reserved to DIRECTV and nothing in this Agreement shall be deemed to restrict in any manner the right or ability of DIRECTV to distribute its DBS services or the DIRECTV System itself or through other parties, or provide any Services to DIRECTV customers itself or through any other party. f. Allocations . Execution of this Agreement does not constitute or guarantee that any Work Order(s) will be issued by DIRECTV or its authorized agent. DIRECTV may allocate any Work Orders described hereunder among its agents, retailers and others in any manner it may choose. Notwithstanding anything in this Agreement or the attached exhibits to the contrary, Contractor acknowledges that this Agreement is non-exclusive and that Contractor is not guaranteed any minimum number of installations or maintenance or other Service Calls on a per-DMA basis or otherwise. g. No Separate Business . This Agreement does not authorize Contractor to operate any business or provide Services to others for its own account and is merely a contract for Services to be provided to, and on behalf of, DIRECTV as ordered by DIRECTV. In no event shall any non-DIRECTV authorized documents, advertisements, offers or promotions be provided by Contractor to DIRECTV customers during the performance of the Services hereunder without prior written approval by DIRECTV. Contractor is not required to pay any fees to DIRECTV to perform hereunder, although fees payable by DIRECTV to Contractor pursuant to its performance hereunder may be subject to offsets or recoupments as is more specifically set forth in section 4 of this Agreement. Contractor acknowledges and agrees that DIRECTV customers are customers of DIRECTV, not Contractor. **** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.
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2. Contractor Administrative Responsibilities . a. Connectivity . (i) Scheduling/Management System . Contractor agrees that it will, at Contractor' s expense, acquire, install and maintain on-line access to DIRECTV' s technician scheduling and management systems as shall be identified by DIRECTV, necessary to establish and maintain such on-line access for purposes of inputting and receiving Work Orders and other information from DIRECTV, as soon as possible but in no event later than fourteen (14) days after DIRECTV makes such connectivity available to Contractor. To the extent that Contractor elects to receive the DIRECTV Work Order data and convert such data into Contractor' s own order management system, Contractor agrees that all information provided by DIRECTV with respect to any Work Order shall remain and be visible at the technician Work Order level. DIRECTV shall make available to Contractor a certain number of (i) seat licenses, including any annual maintenance fee (each an individual " Seat License" ), and (ii) licenses for the use of any approved handheld, web-based device, (together, the " Scheduling Software" ) for the dispatching, and receipt of, Work Orders to Contractor personnel in the field in order to perform the Services as set forth within this Agreement; provided, however, that certain Seat Licenses may be deployed without the deployment and application of any handheld devices, at the sole discretion of DIRECTV. Upon the launch of Siebel or any other successor Scheduling Software to the current CSG platform, Contractor shall within a reasonable rollout schedule, as shall be communicated by DIRECTV, outfit all employee technicians with a laptop computer or other approved web-based, handheld device capable of receiving, modifying and closing Work Orders in the field by such employee technician. All costs related to the purchase of any such laptop or handheld device shall be the responsibility of Contractor. This initial allocation of Scheduling Software by DIRECTV to Contractor shall be based on Contractor' s current pro-rata share of the overall DIRECTV customer base, as is measured by DIRECTV within the rough geographical boundaries of Contractor' s appointed DMA(s); provided, however, that DIRECTV, in its sole discretion, shall provide no less than that amount of Scheduling Software as is reasonably required to manage the dispatching of Contractor personnel for the performance of the Services hereunder as of the effective date of this Agreement. Should Contractor, at any point during the Term, request additional Scheduling Software in order to efficiently perform the Services hereunder Contractor shall purchase (or reimburse DIRECTV), at its sole cost and expense, such additional (or replacement) Scheduling Software through DIRECTV. This provision for additional Software shall govern any such Contractor request should DIRECTV select any successor system at any point during the Term. Contractor agrees that it will comply with the requirements and instructions provided by CSG, Siebel or successor vendor and/or DIRECTV in accordance with the use and implementation of such licenses, software, hardware and equipment provided in connection with Contractor' s use of the DIRECTV-selected System (or successor system). Contractor shall also be responsible for all " air-time" charges (including both voice and data) incurred through the use of the laptop or handheld devices, if any. DIRECTV shall retain title to all hardware or equipment provided by it to Contractor, if any (other than that hardware, if any, Contractor elects to purchase); and Contractor shall promptly return such hardware or equipment to DIRECTV upon DIRECTV' s written request. The scheduled rollout of the provision of Scheduling Software to Contractor shall be determined by DIRECTV. Contractor agrees that it will promptly report the resolution of each Work Order placed by DIRECTV through the system in accordance with this Agreemen t and those guidelines and procedures established by DIRECTV from time to time. Commencing May 1, 2007, no less than eighty-five per cent (85%) of all of Contractor' s eligible monthly Work Order disposition totals shall be handled electronically (i.e., Work Order disposition shall occur via (x) a wireless connection in the field, (y) the IVR or (z) a phone call to a Contractor dispatcher who can then enter the Work Order information electronically). Contractor acknowledges and agrees that failing to promptly and properly report the resolution of each Work Order placed by DIRECTV pursuant to the established business rules and/or policies and procedures shall delay or prevent DIRECTV' s ability to credit Contractor with the completion of such Services and Contractor shall not earn Fees for any particular Work Order until properly closed. Contractor shall require that each technician, including any Approved Subcontractor, has the ability to communicate, via cell phone, with both Contractor' s applicable dispatch office as well as DIRECTV call center representatives while performing the Services hereunder. **** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.
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(ii) Internet/E-Mail . Contractor shall establish and maintain an Internet electronic mail address (a) for purposes of business-to-business communication between DIRECTV and Contractor and (b) to properly perform the obligations hereunder. If DIRECTV reasonably determines that Contractor' s receipt and/or transmission of data via email as it relates to this Agreement is hindered as a result of Contractor' s utilization of a particular internet service provider (" ISP" ) (i.e., ISP file size restrictions, unreasonable traffic load, etc.), Contractor shall be required, within ten (10) days of such notification from DIRECTV, to retain a mutually agreeable ISP in order for Contractor to perform its obligations hereunder. b. Office Space . Contractor shall provide at its own expense, all office space and supplies, office overhead (such as telephone, copier and facsimile expense), labor, skills, tools and other equipment and personnel necessary for it to perform the Services in a timely manner. Contractor shall conspicuously display an approved sign at each office reflecting a logo designated by DIRECTV (in conformance with the DIRECTV Trademark and Style Guide, as defined in paragraph 21, below). Contractor shall staff each office with trained personnel and Contractor shall be available to perform the Services as requested by DIRECTV in accordance with the terms of this Agreement c. Personnel; Vehicles; Uniforms . See Exhibit 2.e . d. Books, Records and Inspections . During the term of this Agreement and for a period of three (3) years thereafter, Contractor agrees that it will keep accurate and complete books and records regarding its performance of its obligations under this Agreement (including but not limited to all original customer-signed forms such as the Customer Installation Satisfaction Checklists for each Work Order performed, all DIRECTV Lease Addendum documents, if any, property damage and bodily injury reports, police reports; Landlord approval forms, DIRECTV System Hardware Bill of Lading documents and documentation verifying employee background checks) and will make such books and records available by fax or by physical inspection, or such other means as DIRECTV requests, as soon as is reasonably possible upon DIRECTV' s request. Throughout the Term, Contractor shall file all DIRECTV customer records, including customer agreements and Work Orders, by date of Services performed and provided, or as otherwise directed by DIRECTV. Contractor shall properly store said customer records pursuant to DIRECTV' s document retention standards for that period of time as shall be required by DIRECTV. If DIRECTV determines that certain, dated customer records no longer need to be maintained at Contractor' s offices, Contractor agrees that it shall follows DIRECTV' s document destruction procedures in the disposal of such records; provided, however, that Contractor shall be allowed to securely maintain identified documents beyond the requested date of destruction should Contractor believe that such retention is necessary for legal purposes. During the term of this Agreement, as well as any extension thereof, and for a period of three (3) years thereafter, Contractor shall make its offices available at any time during business hours so that DIRECTV may inspect and otherwise audit the way in which Contractor is performing the Services both at Contractor' s offices/warehouses and on customers' premises as well as to inspect the manner in which DIRECTV System hardware is being secured. Such audits by DIRECTV shall include completed Work Orders as well as work in progress. In addition, Contractor shall keep accurate and complete financial records related to its business obligations under this Agreement. Such records, to be timely updated monthly (or quarterly for public companies) shall include an income statement, balance sheet, cash flow and a rolling 12-month financial plan. All such records and all accounting systems with respect thereto shall be made available for inspection and review by DIRECTV or its representatives upon reasonable notice to Contractor during normal business hours throughout the Term of this Agreement. In the alternative, if Contractor conducts annual audits and can produce audited financial records along with an independent auditor' s opinion, DIRECTV-access to such audit results shall be sufficient. Financial records provided shall be maintained in accordance with generally accepted accounting principles. Contractor shall fully cooperate with DIRECTV in such inspection and audit. e. Communications Contact . Contractor agrees that it will have reasonably adequate representatives available at all times, seven (7) days a week (8 am to 6 pm local time), for communication with DIRECTV and DIRECTV customers, including administrative personnel to coordinate with DIRECTV personnel regarding completion of the scheduling of the Services hereunder. Specifically, Contractor shall provide a 1-800 (toll-free) (or local, as applicable) number that the DIRECTV Customer Service Department may provide to **** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.
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DIRECTV customers who have a specific question or problem related to such Customer' s installation or installation appointment attached to a Work Order provided by DIRECTV to Contractor. Contractor shall be obligated to reasonably staff to answer such incoming calls as set forth above. Attached as Exhibit 2.e . is a list of persons whom DIRECTV may call outside of the required business hours to coordinate the provision of Services. Contractor will promptly provide an updated list to DIRECTV whenever the list of persons changes for any reason. The designated contact person(s) shall be available on a 24-hour-per-day 7-day-per-week basis. f. Policies and Procedures . In addition to the terms and conditions set forth herein and in each Work Order, Contractor agrees that it will comply with all DIRECTV service guidelines and policies and procedures as reasonably determined by DIRECTV (the " Policies and Procedures" or " P&P" ) furnished to Contractor, which Policies and Procedures may be amended by DIRECTV from time to time in its reasonable discretion. Such Policies and Procedures are hereby incorporated into this Agreement by this reference. Contractor will ensure that the Policies and Procedures are quickly disseminated to all Contractor personnel, including Approved Subcontractors, performing the Services. g. Representations and Warranties . Contractor shall not make any warranties or representations regarding DIRECTV' s programming services or DIRECTV System that are inconsistent with or more extensive than the warranties and representations provided by DIRECTV, and/or the DIRECTV System manufacturers. In no event shall Contractor offer any DIRECTV customer a Contractor-provided service or maintenance plan with respect to the DIRECTV system unless DIRECTV has previously approved, in writing, such an offer by Contractor. 3. Contractor Installation and Service Responsibilities . See Exhibit 3 . 4. Fees Payable by DIRECTV . a. Services . In full consideration for Contractor' s provision of the Services hereunder, DIRECTV agrees to pay Contractor for such Services as described below. (i) Fulfillment Services . For certain Fulfillment Services provided by Contractor, Contractor shall be entitled to receive payment as set forth in Exhibit 4.a.(i) (" Rate Matrix" ) for proper and successful completion of the applicable Work Order. (ii) Service Calls . For the maintenance/Service Calls provided by Contractor to DIRECTV, Contractor shall be entitled to receive payment as set forth in Exhibit 4.a.(ii) (" Service Call Payments" ). b. Credits; Refunds . Notwithstanding anything to the contrary contained herein, Contractor shall not be entitled to any payment for Fulfillment Services not completed for any reason, including a cancellation by the DIRECTV customer at the door. In addition, DIRECTV shall have the right to offset from the amounts owed to Contractor hereunder or any other agreement between the Parties, or recoup from, or charge back directly to, Contractor, at its option, any amount owed by Contractor to DIRECTV hereunder, including, but not limited to, any amounts received by Contractor to which it is not entitled hereunder, any payments made to Contractor in error and any cost that DIRECTV incurs or amount that DIRECTV credits, refunds or pays to a DIRECTV customer or any other third party arising out of the Services provided by Contractor hereunder. If the amount owed by DIRECTV to Contractor for a given month is not sufficient to cover the amount owed to DIRECTV by Contractor for such month, Contractor shall pay the difference to DIRECTV within thirty (30) days following its receipt of an invoice from DIRECTV. **** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.
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5. Invoicing and Payment; Disputed Payment Resolution . a. General . All installation, maintenance and Service Calls not included in the payments process as defined below shall be considered disputed payments (" Disputed Payments" ) and shall be submitted by Contractor and paid by DIRECTV as set forth herein. b. Payments . The payments process shall apply only to installation and services included in the Rate Matrix attached hereto as Exhibit 4.a.(i) and Exhibit 4.a.(ii) " Service Call Payments," both of which may be amended by DIRECTV in its reasonable discretion. DIRECTV shall pay Contractor on or before thirty (30) days after the end of the applicable DIRECTV Accounting Period (i.e., the last day of a given calendar month), provided, however, that no payment shall be considered to be due and payable until the Services in connection therewith have been performed and completed by Contractor in accordance with this Agreement, Notwithstanding the foregoing, the Hardware Reimbursement Fee shall be paid weekly by DIRECTV for those new receivers, specifically containing the access cards previously shipped to Contractor for the fulfillment of Work Orders hereunder, that activated during the prior reporting period. In the event of a deployment of a new receiver that does not activate at the time of installation by Contractor, exceptions to the activation requirement where payment shall still be due is set forth in the P&P.. The parties acknowledge and agree that all other DIRECTV System Components to be reimbursed for by DIRECTV shall be reimbursed in the aggregate within Contractor' s monthly Fulfillment Payment (i.e., the Fulfillment rates take into account Contractor' s cost of consumed receivers, ODUs and LNBs for the particular Work Order type). c. Disputed Payment Resolution . Contractor shall have sixty (60) days from receipt of payment to request a reconciliation of DIRECTV' s payment to Contractor. All payments disputed by Contractor must be made in writing as prescribed hereunder and/or in the established Policies and Procedures. With respect to any disputes concerning Contractor' s provision of the Services which are not reflected in DIRECTV' s system and consequently not paid by DIRECTV, the dispute form/template must be submitted as prescribed by DIRECTV and/or in the Policies and Procedures. All disputed payments must be supported by adequate written descriptions and supporting documents. Upon such request, DIRECTV shall have forty-five (45) days from its receipt of notice of a disputed payment to investigate Contractor' s claim and to respond to Contractor. In the event that DIRECTV maintains records needed by Contractor in order to resolve a dispute, DIRECTV shall provide such documentation to Contractor once at no cost to Contractor. Disputes not submitted in accordance with the process herein shall not be considered by DIRECTV. DIRECTV shall act in good faith and deal fairly with Contractor in reviewing any reconciliation requests submitted by Contractor. DIRECTV' s decision regarding a reconciliation request shall be final and determinative. d. Overpayments . Immediately upon discovery by Contractor, or as a result of DIRECTV' s audit in accordance with Section 2(d) above, of any overpayment, Contractor shall notify DIRECTV, as applicable, and shall return the excess amount to DIRECTV as soon as reasonably possible, but in no event longer than ten (10) days after discovery, or DIRECTV, at its option, may withhold payment of monies due to Contractor until such time as any overpayment has been rectified. 6. Subcontractors; Liens . a. Payment for Services . Except as otherwise requested in writing by DIRECTV, Contractor shall not collect any fees, payments or otherwise from DIRECTV customers in connection with the Services provided and performed in accordance with this Agreement. b. Liens . In no event shall Contractor (a) file, or threaten to file, a lien or a claim against a DIRECTV customer; (b) encumber in any way the property of a DIRECTV customer; or (c) in any way seek to secure payment from said DIRECTV customer in connection with Contractor' s provision of Services hereunder, except as otherwise permitted by DIRECTV. In the event of any dispute with DIRECTV related to the Services provided hereunder, Contractor agrees that it shall seek recourse only against DIRECTV and Contractor agrees to promptly pay and discharge any liens, claims or charges filed by or on the behalf of any of its laborers, Approved Subcontractor(s), material suppliers or any other third party whom Contractor has engaged related to the provision of the Services hereunder. DIRECTV shall have the right to obtain injunctive relief in order to prevent Contractor from breaching its obligations (or to obtain specific performance to compel Contractor to perform its obligations) pursuant to this Section. **** Certain confidential information contained in this document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.
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7. Term . The term (the " Term" ) of this Agreement shall be effective as of the date written above and shall continue for four (4) years (the " Effective Date" ). The Term will automatically renew thereafter for additional, individual one-year periods (each such year a " Renewal Term" ), unless either Contractor or DIRECTV gives written notice of termination at least ninety (90) days in adva ...