EXHIBIT 10.9.1
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4)
and 230.406
INTERNATIONAL VALUE ADDED RESELLER AGREEMENT
This International Value Added Reseller Agreement ("Agreement") is entered
into this 14th day of March, 2003 by and between ORBCOMM LLC, a Delaware limited
liability company ("ORBCOMM"), with its offices located at 21700 Atlantic
Boulevard, Dulles, Virginia 20166, and Transport International Pool, Inc., a
Pennsylvania corporation ("Reseller"), with its offices located at 426 West
Lancaster Avenue, Devon, PA 19333.
WITNESSETH:
WHEREAS, ORBCOMM operates a system that provides low-Earth orbit
satellite-based data communication services; and
WHEREAS, Reseller desires to have the right to market and sell access to
and use of the ORBCOMM System in the Territory solely with respect to the
Application (as defined herein below) in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 DEFINITIONS
Unless otherwise specified herein, the capitalized terms used in this
Agreement shall have the meaning set forth in Exhibit A attached hereto.
SECTION 2 TERM OF AGREEMENT
Subject to the provisions set forth herein, the term of this Agreement
shall commence on the Effective Date and continue for a period of three (3)
years (hereinafter the "Initial Term"). This Agreement may be renewed by
Reseller at its option for up to two (2) further terms of three (3) years each
(together with the Initial Term, the "Term") provided Reseller gives notice to
ORBCOMM in writing of its decision to extend the Agreement at least ninety (90)
days prior to the expiration of the then-current Term.
SECTION 3 PURCHASE OF SERVICE; NON-EXCLUSIVE LICENSE
(a) Purchase and Sale. In the event Reseller elects to purchase or resell
access to and use of the ORBCOMM System, ORBCOMM hereby agrees to sell to
Reseller, and Reseller hereby agrees to purchase, such access and use pursuant
to the terms of this Agreement.
(b) Non-Exclusive License to Promote and Resell. ORBCOMM hereby grants to
Reseller a non-exclusive license to promote, solicit, market and resell access
to and use of the ORBCOMM System in the Territory for use with the Application,
in accordance with the terms of this Agreement. Any purported resale by Reseller
other than pursuant to the terms and conditions of this Agreement or outside of
the Territory shall be null and void.
(c) Sublicense. Reseller may sublicense Agents and Affiliates to promote,
solicit and market access to and use of the ORBCOMM System on Reseller's behalf,
provided that such Agents and Affiliates agree to be bound by the terms of this
Agreement. A Subscriber shall, in any event, purchase and receive services
directly from Reseller and not from any Agent or Affiliate. The parties agree
that any GE Business or GE Affiliate may, at its option, become a Reseller
pursuant to the terms of this Agreement, provided such GE Business or GE
Affiliate agrees to be bound by the terms of this Agreement.
(d) Demonstration Units. During the Initial Term of this Agreement,
Reseller may provision up to one hundred (100) Subscriber Communicators for
demonstration, testing and System monitoring ("Demonstration Units"). During the
remainder of the Term of this Agreement, Reseller shall be permitted to utilize
up to twenty five (25) Demonstration Units. Reseller shall be solely responsible
for all costs associated with obtaining the Demonstration Units from whatever
source. Reseller shall identify for ORBCOMM which Subscriber Communicators are
being used as Demonstration Units and the time period during which they will be
used. Demonstration Units provided to Reseller pursuant this Section shall not
be subject to any fees, including but not limited to Byte Charges or
Provisioning Charges.
(e) Abuse and Fraudulent Use. Access to the ORBCOMM System is furnished
subject to the condition that there be no Abuse of the ORBCOMM System by
Reseller, its Agents, its Subscribers or any other Person associated therewith.
Reseller shall promptly advise ORBCOMM in the event Reseller has actual
knowledge of Abuse of the ORBCOMM System by any Agent, Subscriber or any other
Person. In the event ORBCOMM is advised or in good faith reasonably determines
that Reseller, any Agent, Subscriber or other Person, is engaging in Abuse of
the ORBCOMM System, ORBCOMM shall have the right, after notification and
consultation with Reseller (provided ORBCOMM can reasonably provide such
notification and engage in such consultation), to immediately suspend that
particular Reseller's, Agent's, Subscriber's or other Person's access to and use
of the ORBCOMM System, or terminate the particular Subscriber Communicator being
used during the Abuse of the ORBCOMM System. During such suspension or
termination, all Usage Charges for each Subscriber Communicator affected shall
be suspended as well.
2
(f) Type Approved Modems. For use with the ORBCOMM System, Reseller shall
be responsible for ensuring that only Subscriber Communicators incorporating
Type Approved modems are used, sold, or otherwise distributed by it. ORBCOMM
shall be entitled to immediately suspend or terminate any Subscriber
Communicator's access to the ORBCOMM System if ORBCOMM becomes aware the
Subscriber Communicator is not using a Type Approved modem. During such
suspension or termination, all Usage Charges for each Subscriber Communicator
affected shall be suspended as well.
(g) Non-Exclusive Service. The parties agree that Reseller is under no
obligation to purchase or resell any access to or use of the ORBCOMM Services or
the ORBCOMM System. The parties further agree that Reseller may purchase or
resell low-Earth orbit satellite-based data communication services, or other
data communication services, provided by a Person other than ORBCOMM.
SECTION 4 FEES AND PAYMENT TERMS
(a) Fees. Reseller shall pay to ORBCOMM (or its designee) the Billing Cycle
Amount for each Billing Cycle as provided in this Section. For clarification,
the Billing Cycle is currently each calendar month and the Usage Fees are
computed based on such. In the event that the Billing Cycle is changed pursuant
to the terms of this Agreement, Usage Fees set forth in Exhibit C hereof shall
be adjusted proportionately to reflect such change.
(b) Taxes. The charges as set forth herein do not include applicable taxes.
If ORBCOMM is required to pay any federal, state, county, local, or value added
tax, or any other governmental agency taxes, assessments, fees or charges of any
nature based on the services provided under this agreement, such taxes or fees
must be set forth on the invoice for the applicable Billing Cycle. Otherwise,
such charges shall be the responsibility of ORBCOMM. Nothing in this Agreement
shall require Reseller to pay any franchise, corporate, partnership, succession,
transfer, income, excise, profits or income tax of ORBCOMM. No other charges to
Reseller shall be allowed unless agreed to in writing by Reseller.
(c) Payments. Reseller shall be solely responsible for (i) billings to and
collections from its Subscribers and (ii) all amounts due to ORBCOMM pursuant to
this Agreement for all Subscriber Communicators under Reseller's account
regardless of whether or not Reseller bills and/or collects from its
Subscribers.
(d) Currency. All amounts to be paid by Reseller pursuant to this Section
shall be paid in full in U.S. Dollars within forty-five (45) days after
Reseller's receipt of a valid invoice in accordance with Reseller's standard
accounts payable practices.
3
(e) Method of Payment. All amounts to be paid by Reseller pursuant to this
Section may be paid by check, wire transfer or direct deposit. ORBCOMM shall
include any specific wire transfer or direct deposit account information on its
invoice.
(f) [***]
SECTION 5 RESPONSIBILITIES OF RESELLER
(a) Provisioning. Reseller shall notify ORBCOMM of each Subscriber
Communicator addition, deletion, suspension or account transfer, each Subscriber
Communicator Address change and/or any other change in the service requested by
Subscriber (hereinafter the "Provisioning Changes"). ORBCOMM shall effect such
Provisioning Changes as soon as practicable but in no case more than three (3)
business days following receipt of notice from Reseller. Reseller shall be
responsible for all charges incurred from the date of any Subscriber addition
through the date Reseller notifies ORBCOMM of such Subscriber's Provisioning
Changes.
(b) Sales Forecast. Reseller shall provide a sales forecast on the basis of
the Reseller's good faith estimate of projected sales and on the basis of
reasonable, good faith assumptions.
(c) Representations and Warranties. Reseller shall not, and shall procure
that its Agents shall not, make any representation, warranty, indemnity or
similar claim to any other Person concerning the ORBCOMM System or ORBCOMM
Services unless it is consistent in all material respects with the written
documentation provided by ORBCOMM to Reseller, as such information exists at the
time the representation, warranty, indemnify or similar claim is made, and this
Agreement. In the event of a conflict between the terms of the written
documentation provided by ORBCOMM and this Agreement, the terms of this
Agreement shall prevail.
(d) Support and Training. With ORBCOMM's reasonable assistance, Reseller
shall provide reasonably adequate support and training to its Subscribers with
respect to the Application; provided, that such reasonable assistance by ORBCOMM
shall be limited to general technical issues related to the ORBCOMM System and
Reseller's Application.
(e) First-Line Support. Reseller shall provide, at its own cost and
expense, First-Line Support to Subscribers.
(f) Tax Resale Certificate. Reseller shall, and shall procure that its
Agents shall, provide ORBCOMM with a valid resale certificate.
4
(g) Disclaimer of Rights. Reseller shall include in its agreements with its
Subscribers a provision whereby the Subscriber disclaims any third-party
beneficiary rights in this Agreement.
SECTION 6 RESPONSIBILITIES OF ORBCOMM
(a) Access. ORBCOMM shall provide access to and use of the ORBCOMM System
to the Subscribers pursuant to the terms and conditions of this Agreement and
the standard operational policies of general applicability established by
ORBCOMM. ORBCOMM shall provide no less than thirty (30) days written notice to
Reseller of any material change to such operational policies.
(b) Invoices. Following the end of each Billing Cycle, ORBCOMM shall
provide an invoice to Reseller setting forth the Billing Cycle Amount charged to
Reseller for such Billing Cycle. The content, format and delivery method of the
invoice shall be agreed upon between the parties.
(c) Permits. ORBCOMM shall use all commercially reasonable efforts to
maintain (directly or via contract with its regional licensees or country
representatives), or to cause its Affiliates to maintain, as the case may be,
all Permits required for ORBCOMM to provide ORBCOMM Services in the Territory.
(d) Reporting. ORBCOMM shall provide to Reseller, within thirty (30) days
of being prepared, copies of ORBCOMM's quarterly and annual unaudited and, if
prepared, audited financial statements. Reseller shall protect and maintain such
financial information as strictly confidential and proprietary and agrees that
such information is being provided by ORBCOMM solely for Reseller's use in
evaluating the financial condition of ORBCOMM in connection with the sourcing
relationship with ORBCOMM. Reseller shall not disclose, copy or distribute to
any Person, except to its employees and Affiliates who need to know such
information for the purpose described above, during the Term of this Agreement,
without the prior written consent of ORBCOMM.
(e) ORBCOMM Indemnity. ORBCOMM shall defend, indemnify and save Reseller
and its Agents and Subscribers harmless from and against any expense or
liability, including costs, fees, reasonable attorneys' fees and damages,
arising out of any claim, suit or proceeding that the ORBCOMM System, the use of
the ORBCOMM System or the use of the ORBCOMM Marks constitute infringement of
any patent, trade secret, trade name, trademark, copyright, or other proprietary
right. If an injunction should issue, ORBCOMM shall use commercially reasonable
efforts to procure for Reseller and its Subscribers the rights to continue using
such marks or services or modify them in a manner acceptable so they become
non-infringing.
5
(f) Non-Disclosure. ORBCOMM shall not use Reseller's name or any of its
trademarks, trade names, copyrights or other intellectual property without
Reseller's prior written consent, which consent may be granted or withheld at
Reseller's sole discretion. ORBCOMM shall not disclose the existence of this
Agreement and/or any of its terms to any third party without Reseller's prior
written consent, which consent may be granted or withheld at Reseller's sole
discretion; provided, however, that ORBCOMM may disclose the existence of this
Agreement and its terms to prospective investors and their advisors in written
or oral form so long as they have entered into a non-disclosure agreement with
ORBCOMM in connection therewith. In addition, ORBCOMM may disclose the existence
of this Agreement and its terms to third parties if the information (i) becomes
publicly available after the date of this Agreement through no wrongful act of
ORBCOMM, (ii) is furnished to others by Reseller without similar restrictions on
their right to use or disclose, (iii) is rightfully known by the third party
without any restrictions, (iv) if ORBCOMM produces such information under order
of a court of competent jurisdiction or a valid administrative, arbitral or
congressional subpoena or (v) if such information is requested by any regulatory
or administrative body. It is further agreed that any location or diagnostic
information transmitted by or received by Reseller or its Subscribers,
Affiliates or Agents while using the ORBCOMM System is the confidential property
of Reseller and shall not be disclosed by ORBCOMM to any other Person.
(g) Non-Solicitation. ORBCOMM agrees that Reseller's customer and
Subscriber lists are confidential and the property of Reseller. ORBCOMM agrees
that it and/or its Affiliates shall not at any time during the Term of this
Agreement and for a period of one (1) year thereafter, attempt to contact, or do
business with, any of Reseller's customers or Subscribers for purposes of
providing such customers or Subscribers with ORBCOMM Services or any other
similar services for the Application or applications competitive with the
Application. This provision shall not apply in the event Reseller notifies
ORBCOMM that Reseller and its Affiliates will not be providing asset tracking or
remote monitoring services to its customers or Subscribers.
SECTION 7 [***]
SECTION 8 U.S. GOVERNMENT SUBSCRIBERS
In the case of U.S. government subscribers, Reseller acknowledges and
agrees that the ORBCOMM Services shall be rendered on a commercial basis
consistent with Part 12 of the Federal Acquisition Regulation ("FAR"), as
amended, and that Reseller shall, and shall procure that its Agents shall, offer
the ORBCOMM Services as "Commercial Items" as set forth in FAR Part 12. As set
forth in FAR Part 12, ORBCOMM accepts only the following provisions with respect
to any order issued under any U.S. Government contract:
6
FAR 52.222-26 Equal Opportunity
FAR 52.222-35 Affirmative Action for Special Disabled and Vietnam Era
Veterans
FAR 52.222-36 Affirmative Action for Handicapped Workers
SECTION 9 TERMINATION
This Agreement may be terminated as follows:
(a) Event of Default. If an Event of Default shall have occurred, the
non-defaulting party may elect to terminate this Agreement by giving five (5)
days written notice of termination to the defaulting party. If the Event of
Default is a result of ORBCOMM or its affiliates being unable to maintain the
required permits to provide the ORBCOMM Services in the Territory, Reseller may
terminate this Agreement, with no further obligation under this Agreement, as to
either (i) that portion of the Territory for which ORBCOMM has been unable to
maintain the necessary permits, or (ii) the entire Territory.
(b) Without Prejudice. Termination of this Agreement by either party shall
be without prejudice to any other rights or remedies the terminating party shall
have at law or equity.
(c) Survival. The covenants, agreements and obligations of the parties in
Sections 3(g), 4(a) - (e), 6(e) - (g), 9, 10 and 11 shall survive and remain in
full force and effect.
(d) Responsibility for Obligation to Subscribers. After termination of this
Agreement, Reseller shall remain liable for payment of all amounts due pursuant
to Section 4 up to the date of termination, including accrued but unbilled
amounts.
(e) Cancellation of Order. Upon the giving or receiving of any notice of
termination, ORBCOMM shall be entitled to cancel any previously accepted orders
to provide ORBCOMM services to new Subscribers that have not yet been activated.
(f) Return of Equipment and Documents. Upon termination, Reseller shall
promptly return to ORBCOMM any ORBCOMM equipment, other than equipment that has
been paid for in full by Reseller.
7
SECTION 10 DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
(a) Disclaimer of Warranties. Except as otherwise provided herein, to the
fullest extent permitted by applicable law, none of ORBCOMM or any of its
Affiliates has made or shall be deemed to have made any representations or
warranties whatsoever with respect to the ORBCOMM System or the ORBCOMM Services
except as expressly stated herein. Except as otherwise provided herein, to the
fullest extent permitted by applicable law, ORBCOMM and its Affiliates expressly
disclaim with respect to Reseller and its Agents, and Reseller hereby expressly
waives, releases and renounces all warranties of ORBCOMM and its Affiliates
arising at law, equity or otherwise, including, but not limited to: (a) any
implied warranty of merchantability or fitness for a particular purpose; (b) any
implied warranty arising from course of performance, course of dealing or usage
of trade; (c) any warranties as to the accuracy, availability or content of the
ORBCOMM System or the ORBCOMM Services; and (d) any warranty under any theory of
law or equity, including any tort, negligence, strict liability, contract or
other legal or equitable theory.
(b) Limitation of Liability. Except as otherwise provided herein, neither
party shall be liable to the other for incidental, indirect, special or
consequential damages of any kind, including lost profits, loss of business or
loss of goodwill, or damages to business or reputation arising from the
performance or non-performance of any aspect of this agreement whether in
contract, tort or otherwise, and whether they have been advised of the
possibility of such damages. However, the foregoing limitation shall not apply
to any claim for gross negligence, willful or intentional misconduct, fraud,
misrepresentation or other intentional tort.
SECTION 11 MISCELLANEOUS
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon receipt if delivered personally, by
facsimile, by express mail, courier, or by registered or certified mail, return
receipt requested, postage prepaid, to the parties at the following addresses
(or such other address for a party as shall be specified by like notice,
provided that such notice shall be effective only upon receipt thereof):
8
ORBCOMM:
ORBCOMM LLC
21700 Atlantic Boulevard
Dulles, Virginia 20166
Telephone: +1 (703) 433-6300
Facsimile: +1 (703) 433-6868
Attention: General Counsel and
Don Franco
with a copy to:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
Telephone: +1 (212) 405-5100
Facsimile: +1 (212) 541-5369
Attention: Alejandro R. San Miguel
RESELLER:
Transport International Pool, Inc.
80 West Lancaster Avenue
Devon, PA 19333
Telephone: (610) 225-1267
Facsimile: (610) 225-2871
Attention: Christopher Kelley
with a copy to:
Transport International Pool, Inc.
426 West Lancaster Avenue
Devon, PA 19333
Telephone: (610) 648-6452
Facsimile: (610) 648-6830
Attention: SVP and General Counsel
(b) Waiver. It is understood and agreed that no failure or delay by either
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof, or the exercise of any other right, power or
privilege hereunder. No waiver of any terms or conditions of this Agreement
shall be deemed to be a waiver of
9
any subsequent breach of any term or condition. All waivers must be in writing
and signed by both parties hereto.
(c) Standards. Each party shall, and shall procure that their respective
Agents shall, employ the highest standards of business conduct in the
performance of their obligations hereunder and shall comply with all applicable
laws, rules and regulations of any applicable Governmental Authority in the
performance of their obligations hereunder.
(d) No Third-Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended or shall be construed to give any Person other than the
parties to this Agreement or their permitted successors or assigns any legal or
equitable right, remedy or claim under this Agreement or any particular
provision contained herein.
(e) Additional Representations and Warranties. Each party represents and
warrants to the other party that (i) it is duly organized or formed, validly
existing and in good standing under the laws of the state of its organization or
formation, as the case may be, and in each jurisdiction in which the nature of
its business requires it to be so, (ii) the execution, delivery and performance
of this Agreement have been duly authorized by all necessary action (corporate
or otherwise), (iii) this Agreement has been duly executed and delivered and
constitutes a legally valid and binding obligation, enforceable against it in
accordance with its terms, (iv) it has all Permits necessary for it to enter
into and perform its obligations under this Agreement, and (v) it shall not
violate any copyright, trade secret, trademark, patent, invention, proprietary
information, privacy, non-disclosure or any other statutory or common law rights
of any third party in the performance of its obligations under this Agreement.
(f) Costs and Expenses. Except as otherwise specifically provided herein,
each party shall bear all costs and expenses incurred in the performance by it
of its obligations hereunder.
(g) Other Resellers. Reseller acknowledges and agrees that ORBCOMM may,
subject to Section 6(g), market ORBCOMM Services for any applications through
other resellers.
(h) Independent Parties. Each party is an independent party. Except as
provided in this Agreement, neither party shall have the right, power or
authority to act or to create any obligation, express or implied, on behalf of
the other party.
(i) Tariffs. In the event that any ORBCOMM Services or the charges made
therefor are currently subject, or at any time become subject, to any tariff or
other form of rate regulation imposed by a Governmental Authority, then the
terms and
10
conditions of this Agreement, including the prices set forth in the Pricing Rate
Schedule, shall be deemed amended to conform to any conflicting terms and
conditions in effect under such regulation or tariff. All non-conflicting terms
and conditions of this Agreement shall remain valid and in full force and
effect.
(j) Permits. Each party shall maintain in full force and effect all Permits
that are required in connection with the performance of its obligations
hereunder. Upon the reasonable written request from either party, the other
party shall provide reasonable evidence of the validity or effectiveness of any
Permit held by or on behalf of it in connection with this Agreement.
(k) Binding Effect; Assignment. This Agreement shall be binding upon the
parties and their permitted successors and assigns. Neither this Agreement nor
any interests or obligations of a party shall be assigned or transferred (by
operation of law or otherwise) to any Person without the prior written consent
of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, either party may assign this Agreement without
the other party's consent in the event the party becomes a party to one or more
transactions in the form of a merger, consolidation, reorganization, stock sale
or exchange, sale of all or substantially all of the party's assets or some
similar or related transaction, with the result being that said party is the
surviving entity, or if not the surviving entity, the surviving entity continues
to conduct the business conducted by such party prior to the consummation of the
transaction, including the assumption of the rights and obligations under this
Agreement, provided such transaction does not involve a competitor of Reseller
or its Affiliates within the Territory on the one hand and a competitor of
ORBCOMM in the low Earth orbit satellite industry on the other hand.
(l) Entire Agreement; Amendment. This Agreement and all attachments (which
are hereby made part of this Agreement) contain the entire understanding between
Reseller and ORBCOMM and supersede all prior written and oral understandings
relating to the subject matter hereof (excluding the Mutual Non-Disclosure
Agreement). No representations, warranties, indemnities, agreements or
understandings not contained herein shall be valid or effective unless agreed to
in writing and signed by both parties. Any modification or amendment of this
Agreement must be in writing and signed by both parties.
11
(m) Governing Law. The construction, interpretation and performance of this
Agreement, as well as the legal relations of the parties arising hereunder,
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the conflict or choice of law provisions
thereof.
(n) Severability. If any part of this Agreement shall be held invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any remaining portion, which shall remain in force and effect
as if this Agreement had been executed with the invalid or unenforceable portion
thereof eliminated.
(o) Headings. Headings in this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
ORBCOMM LLC TRANSPORT INTERNATIONAL POOL, INC.
By: /s/ Don Franco By: /s/ Christopher P. Kelley
--------------------------------- ------------------------------------
Name: Don Franco Name: Christopher P. Kelley
Title: Co-CEO Title: SVP
EXHIBIT A
DEFINITIONS
(a) "Abuse of the ORBCOMM System" shall mean: (i) providing or attempting
to provide, or assisting or permitting another Person to (A) access, alter or
interfere with the communications and/or information of a Subscriber by
rearranging, tampering or making an unauthorized connection with the ORBCOMM
System or (B) use of any scheme, false representation or false credit device,
with the intent to avoid payment, in whole or in part, for ORBCOMM Services;
(ii) using the ORBCOMM System in such a manner as to interfere unreasonably with
the use of the ORBCOMM System by other users and subscribers; (iii) using the
ORBCOMM System to convey information that is unlawful or conveying it in an
unlawful manner; (iv) causing electromagnetic interference, either intentionally
or unintentionally, with the operation of the ORBCOMM System in such a way as to
impair the quality of service provided by ORBCOMM to its other resellers and
subscribers or the operation of another system or application approved by the
FCC or other Governmental Authority.
(b) "Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such Person. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. For
Reseller, an Affiliate shall also mean an entity in which GE owns at least a 20%
equity interest in such entity (or, for countries where majority ownership is
restricted to 20% or less, the maximum equity ownership permitted by local law).
(c) "Agent" shall mean a Person (other than Reseller, an Affiliate of
Reseller, an employee of Reseller, or an employee of an Affiliate of Reseller)
that is authorized pursuant to this Agreement to market and sell access to and
use of the ORBCOMM System on Reseller's behalf.
(d) "Application" shall mean the application or applications described on
Exhibit B.
(e) "Billing Cycle" shall mean a calendar month.
(f) "Billing Cycle Amount" shall mean, with respect to any Billing Cycle,
the sum of all charges incurred for such Billing Cycle, including Usage Charges
and Provisioning Charges for all Subscriber Communicators in each case.
(g) "Effective Date" shall mean the date of this Agreement as set forth in
the Preamble.
(h) "Event of Default" shall mean the occurrence of any one or more of the
following: (a) Reseller fails to pay any validly billed amount to ORBCOMM when
due and such failure is not cured within thirty (30) days of Reseller's receipt
of written notice of said failure to pay; (b) [***] not cured within the
fifteen (15) day period as set forth in Section 7, or any subsequent [***]
related to the previously-identified and purportedly addressed [***]; (c)
ORBCOMM or its Affiliates, country representatives, regional licensees or agents
shall not have maintained in full force and effect all Permits necessary to
provide ORBCOMM Services in the Territory and such failure shall have continued
for a period of sixty (60) days; (d) any material representation or warranty
made by or on behalf of Reseller or ORBCOMM contained in this Agreement shall be
not be true and correct in all material respects when made; or (e) either
Reseller or ORBCOMM shall fail to perform in all material respects their
respective covenants contained in this Agreement.
(i) "FCC" shall mean the United States Federal Communications Commission or
any successor agency thereto.
(j) "First-Line Support" shall mean preliminary customer support.
(k) "GE" shall mean collectively, the General Electric Company, GE
Businesses and its and their Affiliates worldwide.
(l) "GE Business" shall mean an individual operating business or division
of GE, which major operating divisions at the time of this Agreement include: GE
Aircraft Engines, GE Commercial Finance, GE Consumer Products (GE Appliances and
GE Lighting), GE Equipment Management, GE Consumer Finance, GE Insurance, GE
Industrial Systems, GE Medical Systems, NBC, GE Plastics, GE Power Systems, GE
Specialty Materials, GE Transportation Systems, and GE Corporate (which includes
GE Corporate Research & Development, GE Supply and all other Corporate and
support components which components provide, among other things, international
trade support, market development, licensing and investments for various GE
businesses).
(m) "Governmental Authority" shall mean any federal, state, local or other
governmental agency or authority of the United States or any other country.
(n) "Mutual Non-Disclosure Agreement" shall mean the Mutual Non-Disclosure
Agreement dated as of April 3, 2002, between Reseller and ORBCOMM.
2
(o) "ORBCOMM Services" shall mean the data communication services provided
by ORBCOMM using the ORBCOMM System.
(p) "ORBCOMM System" shall mean the network of low-Earth orbit satellites,
gateway Earth stations, network and gateway control equipment and other
equipment owned and operated by ORBCOMM, its Service Licensees, Country
Representatives and/or Gateway Service Providers.
(q) "Permits" shall mean any franchise, license, license exemption,
consent, approval, authorization, registration, equipment type approval, special
temporary authority, or import approval, the issuance of which is required by a
Governmental Authority with jurisdiction in any country in the Territory.
(r) "Person" shall mean an individual or a corporation, partnership,
association, trust or any other entity or organization.
(s) "Pricing Rate Schedule" shall mean the Pricing Rate Schedule attached
hereto as Exhibit C.
(t) "Provisioning Charge" shall mean the charge for the activation of a
particular Subscriber Communicator for use in connection with the ORBCOMM System
in the Territory, as set forth on the Pricing Rate Schedule.
(u) "Subscriber" shall mean a customer (other than Reseller) purchasing
access to and use of the ORBCOMM System from Reseller or Reseller, when access
to and use of the ORBCOMM System is for Reseller's own commercial use and
account.
(v) "Subscriber Communicator" shall mean the equipment used by Reseller or
its Agents or Subscribers to access the ORBCOMM System, which has been Type
Approved and to which a physical serial number, device control number, radio
identification codes, and a Subscriber Communicator Address have been assigned.
(w) "Subscriber Communicator Address" shall mean the unique subscriber
communicator address or addresses assigned to a Subscriber Communicator for use
within the ORBCOMM System.
(x) "Subscriber Information" shall mean any information regarding a
Subscriber or Subscriber Communicator provided to ORBCOMM by Reseller,
Reseller's Agents or Reseller's employees during the term of this Agreement. For
clarification, Subscriber Information shall not include the Subscriber
Communicator Address or any intellectual property of ORBCOMM associated with or
incorporated in a Subscriber Communicator.
3
(y) "Territory" shall mean the United States, Canada and Mexico.
(z) "Type Approved" shall mean the approval for use with the ORBCOMM System
granted by or on behalf of ORBCOMM to each model or type of modem incorporated
into Subscriber Communicators based on ORBCOMM's determination that such model
or type of modem meets the requirements set forth in the applicable
specifications and successfully meets the testing requirements specified in each
applicable manufacturing agreement.
(aa) "Usage Charges" shall mean the charges incurred by Reseller as set
forth on the Pricing Rate Schedule.
4
EXHIBIT B
RESELLER APPLICATION DESCRIPTION
Reseller's Application is defined as:
1. Reseller's service or product offering that tracks and/or monitors
assets for the GE Equipment Management businesses, the GE Medical
Systems businesses, or their respective customers or Subscribers.
2. Any other product developed for the purpose of tracking and/or
monitoring assets which is derived from or is substantially similar in
nature to Application 1 above and which has a message profile and
frequency of transmission similar to Application 1 above; provided,
however, that any such other product shall be tested prior to
Provisioning to ensure that the product does not cause an Abuse of the
ORBCOMM System. Such testing shall be conducted pursuant to a testing
protocol agreed to by the parties.
3. Reseller's Application shall specifically exclude products that
provide back up communication services for automobile systems not
included in Paragraphs 1 and 2 above.
EXHIBIT C
Pricing Rate Schedule for Entire Territory
[***]
[2 pages omitted]
EXHIBIT D
[***]
[3 pages omitted]