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EXHIBT 10.13
GROUND SEGMENT PROCUREMENT CONTRACT
This Ground Segment Procurement Contract (the "Contract") is entered
into this 10th day of October 1996, between ORBCOMM INTERNATIONAL PARTNERS,
L.P. ("ORBCOMM"), whose principal place of business is 21700 Atlantic
Boulevard, Dulles, Virginia, 20166, USA, and CELLULAR COMMUNICATIONS NETWORK
(MALAYSIA) SDN. BHD. ("Licensee"), whose principal place of business is 1st
Floor Menara TR, 161B Jalan Ampany, 50450 Kuala Lumpur, Malaysia.
WHEREAS, Orbital Communications Corporation ("OCC") and Teleglobe
Mobile Partners ("Teleglobe Mobile"), through ORBCOMM Global, L.P. ("ORBCOMM
Global"), plan to design, develop, construct and operate a satellite-based,
low-Earth orbit message and data communications and position determination
system (the "ORBCOMM System") that is identified by the International
Telecommunications Union as "LEOTELCOM 1";
WHEREAS, the initial two satellites for the ORBCOMM System were
launched in April 1995 and are currently commercially available in the United
States for the non real-time transmission of short messages and data;
WHEREAS, ORBCOMM Global plans to market satellite-based, two-way
message and data communication and position determination services using the
ORBCOMM System (the "ORBCOMM Services") in the United States through ORBCOMM
USA, L.P. ("ORBCOMM USA") and elsewhere in the world through ORBCOMM;
WHEREAS, ORBCOMM and Licensee are concurrently herewith executing an
agreement pursuant to which, subject to certain terms and conditions, ORBCOMM
authorizes Licensee to access the satellites in the ORBCOMM System and to use
certain other related assets for purposes of Licensee offering on an exclusive
basis ORBCOMM Services using the ORBCOMM System in the Territory; and
WHEREAS, ORBCOMM and Licensee are concurrently herewith executing a
software license agreement pursuant to which, among other things, Licensee will
be authorized to use, on the terms and conditions specified therein, certain
software needed to use and operate the ground segment hardware to be procured
pursuant to this Contract.
NOW, THEREFORE, the parties agree as follows:
SECTION 1 - DEFINED TERMS
"AAA" shall have the meaning assigned thereto in Section 10(a).
"Effective Date" shall mean the date of the execution of this
Contract.
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"Gateway Acceptance Test" shall have the meaning assigned thereto in
Section 2(d)(ii).
"Gateway Acceptance Test Certificate" shall have the meaning assigned
thereto in Section 4(b).
"Gateway Facilities and Environmental Specifications" shall have the
meaning assigned thereto in Section 2(c)(ii).
"Gateway Implementation Plan" shall have the meaning assigned thereto
in Section 2(c)(iv).
"Gateway Product Specifications" shall mean the functional
specifications of the Ground Segment Hardware.
"Governmental Authority" shall mean any country, federal, state, local
or other governmental agency or authority.
"Ground Segment Hardware" shall have the meaning assigned thereto in
Section 2(b)(i).
"Initial Purchase" shall have the meaning assigned thereto in Section
2(b)(i).
"Licensee System" shall have the meaning assigned thereto in the
Service License Agreement.
"On-Site Technical Assistance Services" shall have the meaning
assigned thereto in Section 8(a).
"ORBCOMM Gateway" shall mean the facilities consisting of
dual-antenna, redundant gateway Earth stations ("GESs"), computers, displays,
control consoles, communications equipment and other hardware that transport
and control the flow of data and message communications and other information
for the ORBCOMM System. An ORBCOMM Gateway shall be deemed to include one GES
and may be expanded through the addition of supplemental GESs.
"ORBCOMM Gateway Software License Agreement" shall mean the ORBCOMM Gateway
Software License Agreement dated October 10, 1996 between ORBCOMM and Licensee.
"Other Services" shall have the meaning assigned thereto in Section 8.
"Permits" shall mean approvals, licenses, authorizations and permits.
"Point-of-Entry" shall have the meaning assigned thereto in Section
5(a).
"Provisioning Services" shall have the meaning assigned thereto in the
ORBCOMM Gateway Software License Agreement.
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"Related Services" shall have the meaning assigned thereto in Section
2(b)(i).
"Satellites" shall mean any of the low-Earth orbit satellites
comprising the constellation portion of the ORBCOMM System
"Service License Agreement" shall mean the Service License Agreement
dated October 10, 1996 by and between ORBCOMM and Licensee.
"Supplemental GES Acceptance Test" shall have the meaning assigned
thereto in Section 2(d)(ii).
"Supplemental GES Acceptance Test Certificate" shall have the meaning
assigned thereto in Section 4(b).
"System Available Date" shall have the meaning assigned thereto in the
Service License Agreement.
"Transaction Agreements" shall mean this Agreement, the Service
License Agreement, the ORBCOMM Gateway Software License Agreement and the CSC
Software License Agreement (as such term is defined in the Service License
Agreement).
"Telephonic Support Services" shall have the meaning assigned therein
in Section 8(b).
"Territory" shall have the meaning assigned thereto in the Service
License Agreement.
"Warranty Period" shall have the meaning assigned thereto in Section
6(a).
SECTION 2 - PURCHASE OF GROUND SEGMENT HARDWARE; LICENSE OF ORBCOMM GATEWAY
SOFTWARE
(a) Ground Segment Design. To the fullest extent permitted by
law, the parties to this Contract acknowledge and agree that the hardware and
software that comprise the ORBCOMM Gateway are a collection of custom-developed
hardware and software or customized adaptations of commercially available
hardware and software that have been configured for the ORBCOMM System
messaging application and have been designed to ensure that more than one
licensee can use the ORBCOMM System to provide ORBCOMM Services. To the
fullest extent permitted by law, the parties further acknowledge and agree that
(i) it is critical that licensee systems not interfere with each other and (ii)
to ensure that mutually compatible operations can take place, it is essential
that Licensee purchase from ORBCOMM, on the terms and conditions set forth
herein, the ORBCOMM Gateway hardware specified herein to be used in the
Territory and that such ORBCOMM Gateway hardware be installed, integrated and
tested by ORBCOMM.
(b) Purchase and Sale of ORBCOMM Gateway Hardware and Related
Services. (i) Licensee shall procure and install in the Territory, either
directly or through a wholly owned subsidiary, the ORBCOMM Gateway hardware
described in Attachment 1 to this Contract (the
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"Ground Segment Hardware"), which ORBCOMM Gateway shall incorporate at least
[CONFIDENTIAL TREATMENT] GESs (the "Initial Purchase"). In connection with the
purchase of the Ground Segment Hardware, Licensee shall procure the related
construction, installation, integration, test and training services necessary
to construct, install and operate the Ground Segment Hardware in the Territory
as more fully described in Attachment 2 to this Contract (the "Related
Services").
(ii) (A) The order for the Initial Purchase shall be placed on the
Effective Date, and if not so placed, it shall be deemed to have been placed by
Licensee and accepted by ORBCOMM on the Effective Date.
(B) The parties further agree that the purchase, installation and
acceptance of the Ground Segment Hardware may be delayed if Licensee contracts
with another ORBCOMM System service licensee to share the use of such other
service licensee's ground segment hardware, if in ORBCOMM's sole opinion,
determined from time to time, the use of such other ground segment hardware
will not significantly degrade the quality of service in the Territory or in
the territory of such other licensee or adversely impact the overall operation
or functioning of the ORBCOMM System. ORBCOMM shall be entitled to perform any
and all tests it deems, in its reasonable opinion, to be necessary or
appropriate to ensure the proper functioning and operation of the shared ground
segment hardware. Licensee shall immediately notify ORBCOMM of the occurrence
of an event of default or an event that with the giving of notice or lapse of
time, or both, would result in an event of default under such agreement or the
receipt of a notice of termination under such agreement. If such agreement is
terminated, Licensee shall immediately place an order with ORBCOMM for the
purchase of the necessary Ground Segment Hardware. A copy of any such
contract, with a certified translation into English, if necessary, shall be
provided to ORBCOMM.
(c) Additional Licensee Responsibilities. Licensee shall:
(i) Consult with ORBCOMM on the location of the
ORBCOMM Gateway including all the GESs to ensure technical
compatibility with the ORBCOMM network plan and locate the GESs such
that ORBCOMM Services may be provided in all parts of the Territory
consistent with the objective of maximizing ORBCOMM Service
availability to Subscribers;
(ii) Acquire and make available for use, within six
months of placing any order for the Ground Segment Hardware and the
Related Services, the land, buildings, utilities and facilities
consistent with the specifications set forth in Attachment 3A (the
"Gateway Facilities and Environmental Specifications") and provide the
services set forth in Attachment 3B;
(iii) Be responsible and arrange for import of the
Ground Segment Hardware into the country or countries of destination
and, in connection therewith, obtain all necessary Permits from all
applicable Governmental Authorities needed for the import of the
Ground Segment Hardware into the country or countries of destination;
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(iv) Within 90 days of the Effective Date, negotiate
in good faith with ORBCOMM and comply with the terms and conditions of
a mutually agreed plan for the implementation, including installation
and test, of the Licensee System including the ORBCOMM Gateway (the
"Gateway Implementation Plan");
(v) Pay any and all import or customs duties, fees,
taxes or other amounts imposed by any Governmental Authority in the
Territory applicable to the purchase of any portion of the Ground
Segment Hardware; and
(vi) Comply in all material respects with all
applicable laws, rules and regulations of any Governmental Authority
in the performance of its obligations hereunder.
(d) ORBCOMM Responsibilities. ORBCOMM shall:
(i) Consult with Licensee on the location of the
ORBCOMM Gateway including the GESs to ensure technical compatibility
with the ORBCOMM network plan;
(ii) Provide Licensee with the Gateway Product
Specifications within 160 days of the Effective Date, and the
acceptance test procedures 60 days prior to the date of the Gateway
Acceptance Test as specified in the Gateway Implementation Plan for
(A) performing an acceptance test designed to ensure and certify that
the ORBCOMM Gateway meets the requirements of the Gateway Product
Specifications (the "Gateway Acceptance Test") and (B) performing an
acceptance test of supplemental GESs added after the initial Gateway
Acceptance Test (the "Supplemental GES Acceptance Test");
(iii) On the terms and conditions set forth herein,
provide the Ground Segment Hardware, perform the Related Services and
perform the Gateway Acceptance Test and, to the extent required,
perform Supplemental GES Acceptance Tests;
(iv) Within 90 days of the Effective Date, negotiate
in good faith with Licensee and comply with the terms and conditions
of the Gateway Implementation Plan;
(v) Provide Licensee, in accordance with the
Gateway Implementation Plan, written operating and maintenance manuals
for the ORBCOMM Gateway to be located in the Territory;
(vi) Comply in all material respects with all
applicable laws, rules and regulations of any Governmental Authority
in the performance of its obligations hereunder;
(vii) Obtain (A) all necessary Permits from all
applicable Governmental Authorities needed for the export of the
Ground Segment Hardware from the United States of America (or from
such other country where the hardware is manufactured or
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sold) to the country or countries of destination and, to the extent
necessary, the rendering of the Related Services or the Other Services
in such country or countries and (B) all necessary visas and work
permits for its personnel who will be traveling to such country or
countries to perform any of the Related Services or Other Services;
provided, however, that at ORBCOMM's request, Licensee shall assist
ORBCOMM in obtaining such visas and work permits from the appropriate
Governmental Authorities located in the Territory;
(viii) On transfer of title to the Ground Segment
Hardware, provide Licensee with good and marketable title to such
Ground Segment Hardware, free and clear of and from all claims, liens,
charges or encumbrances of any kind arising by or through ORBCOMM; and
(ix) Provide Licensee with a written breakdown of
prices charged for the Ground Segment Hardware and Related Services,
in a form suitable for the determination of import duties and other
taxes, if any, no later than one month after the orders by Licensee
for such Ground Segment Hardware have been received by ORBCOMM,
provided that such written breakdown shall be provided to and used by
Licensee only for the purpose set forth in this Section 2(d)(ix).
SECTION 3 - CONSIDERATION AND PAYMENT TERMS
(a) Consideration. In consideration of ORBCOMM selling to
Licensee the Ground Segment Hardware and the Related Services, Licensee agrees
to pay the following amounts to ORBCOMM:
(i) For the Initial Purchase, consisting of the
Ground Segment Hardware and the Related Services for the ORBCOMM
Gateway incorporating [CONFIDENTIAL TREATMENT] GES, [CONFIDENTIAL
TREATMENT]; and
(ii) For each supplemental GES, [CONFIDENTIAL
TREATMENT].
The prices set forth above shall remain in effect for orders placed on
or before [CONFIDENTIAL TREATMENT]. For any orders placed during
[CONFIDENTIAL TREATMENT], the prices set forth above shall be adjusted
by an amount that is [CONFIDENTIAL TREATMENT], provided, however, that
any increase shall not be more than [CONFIDENTIAL TREATMENT] percent.
For orders placed after [CONFIDENTIAL TREATMENT], to the fullest
extent provided by law, ORBCOMM reserves the right to set such prices
as it, in its sole discretion, deems appropriate so long as such
prices are [CONFIDENTIAL TREATMENT] with similar terms and conditions.
Any and all import or customs duties, fees, taxes or other amounts
imposed by any Governmental Authority in the Territory applicable to
the purchase of the Ground Segment Hardware shall be paid by Licensee
and shall be in addition to the amounts set forth above.
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(b) Payment Terms. For the Initial Purchase and all subsequent
purchases, Licensee shall pay ORBCOMM (i) [CONFIDENTIAL TREATMENT] percent of
the applicable price specified in Section 3(a)(i) or (ii), as applicable, at
the time [CONFIDENTIAL TREATMENT], or at the time [CONFIDENTIAL TREATMENT],
(ii) [CONFIDENTIAL TREATMENT] percent upon receipt by Licensee of [CONFIDENTIAL
TREATMENT], and (iii) [CONFIDENTIAL TREATMENT] percent on [CONFIDENTIAL
TREATMENT], as applicable, for such hardware; provided, however, that in the
event it is not possible for any reason to complete [CONFIDENTIAL TREATMENT],
the amount of the final payment shall be mutually agreed upon, taking into
account the costs incurred by ORBCOMM and a reasonable profit on those costs.
SECTION 4 - INSPECTION AND ACCEPTANCE; TRANSFER OF TITLE
(a) Inspection. Prior to shipment of any portion of the Ground
Segment Hardware, ORBCOMM shall conduct a pre-shipment integration test that
confirms that all elements of the Ground Segment Hardware to be shipped are
properly integrated and work in accordance with the Gateway Product
Specifications. Such pre-shipment integration test shall be performed at an
integration facility or facilities and at a time specified by ORBCOMM. ORBCOMM
shall be entitled to perform such testing using a designated test antenna and
associated pedestal, which shall conform to all required specifications
hereunder, in conjunction with all other Licensee-specific Ground Segment
Hardware. The antenna and pedestal forming the Ground Segment Hardware to be
provided hereunder will be shipped once all unit testing and certification has
been performed and documented for these components. ORBCOMM shall use all
commercially reasonable efforts to provide Licensee with two weeks notice of
the time and location of such pre-shipment integration test, and Licensee shall
be entitled to witness such test. On successful completion of the pre-shipment
integration test, ORBCOMM shall provide Licensee with a Pre-Shipment
Integration Test Certificate, the form of which shall be attached as an exhibit
to the Gateway Implementation Plan.
(b) Acceptance. The Ground Segment Hardware shall be accepted in
accordance with the Gateway Acceptance Test or the Supplemental GES Acceptance
Test, as the case may be. The Gateway Acceptance Test or the Supplemental GES
Acceptance Test, as the case may be, shall take place at the location where the
Ground Segment Hardware is to be installed and used by Licensee. The Gateway
Acceptance Test or Supplemental GES Acceptance Test, as the case may be, shall
be scheduled at a mutually convenient time within ten days after ORBCOMM
notifies Licensee that installation of Ground Segment Hardware is complete.
Licensee shall satisfy itself during the Gateway Acceptance Test or
Supplemental GES Acceptance Test that the Ground Segment Hardware being
installed conforms to the requirements set forth in such tests. Within seven
days after the Gateway Acceptance Test or Supplemental GES Acceptance Test,
Licensee shall give written notice of any claim, together with supporting
documentation thereof, that any Ground Segment Hardware has failed to pass any
of the tests prescribed in the applicable Gateway Acceptance Test plan or
Supplemental GES Acceptance Test plan.. After successful completion of the
Gateway Acceptance Test or Supplemental GES Acceptance Test, as the case may
be, ORBCOMM and Licensee shall execute a certificate certifying that the Ground
Segment Hardware for which such test was performed successfully passed the
Gateway Acceptance Test (the "Gateway Acceptance Test
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Certificate") or the Supplemental GES Acceptance Test (the "Supplemental GES
Acceptance Test Certificate"), as the case may be, provided that ORBCOMM and
Licensee may identify non-material deficiencies in the Ground Segment Hardware
that will be placed on a mutually agreed punch list, the completion of which
shall not affect delivery, acceptance, payment or transfer of title for such
Ground Segment Hardware. If Licensee (i) fails to participate in the Gateway
Acceptance Test or Supplemental GES Acceptance Test, (ii) fails to notify
ORBCOMM as required by this Section 4(b), or (iii) uses the Ground Segment
Hardware for any purposes other than testing in connection with the acceptance
testing process set forth herein, Licensee agrees that it shall be deemed to
have executed the Gateway Acceptance Test Certificate or the Supplemental GES
Acceptance Test Certificate, as the case may be.
(c) Transfer of Title. Title to the Ground Segment Hardware
delivered hereunder shall pass to Licensee on delivery of the Gateway
Acceptance Test Certificate or the Supplemental GES Acceptance Test
Certificate, as the case maybe, and receipt of final payment for such Ground
Segment Hardware.
SECTION 5 - DELIVERY AND RISK OF LOSS
(a) Delivery and Risk of Loss. ORBCOMM shall transport the Ground
Segment Hardware CIP to a major seaport, airport or such other location in the
Territory for delivery as the parties may mutually agree on (the
"Point-of-Entry"). As specified in Sections 2(c)(iii) and (v), Licensee as
importer of the Ground Segment Hardware shall effect customs clearance and pay
all fees, import duties, tariffs and taxes associated therewith. Any demurrage
arising from customs clearance shall be to the account of Licensee. Licensee
shall accept delivery of the Ground Segment Hardware on unloading, before it
clears customs, at the Point-of-Entry. Licensee shall arrange and be
responsible for the transport of the Ground Segment Hardware from the
Point-of-Entry to the installation site(s). Risk of loss for the Ground
Segment Hardware shall pass to Licensee when the Ground Segment Hardware is
unloaded, before it clears customs. Thereafter, Licensee shall insure at its
expense the Ground Segment Hardware, and on written request shall provide
ORBCOMM with evidence of such insurance.
(b) Schedule for Delivery. The schedule for delivery of the
Ground Segment Hardware by ORBCOMM shall be established in the Gateway
Implementation Plan, provided that the ORBCOMM Gateway incorporating
[CONFIDENTIAL TREATMENT] GES shall be installed in the Territory and accepted
as soon as possible. Both parties hereto acknowledge and agree that the
schedule for installation of the Ground Segment Hardware shall be an "all
commercially reasonable efforts" schedule only, and that ORBCOMM shall not be
held liable for damages caused by changes or delays to the schedule.
(c) Liens. So long as there remains any unpaid amount by Licensee
to ORBCOMM hereunder, Licensee shall not permit, allow or suffer the attachment
of any lien, charge or encumbrance of any kind on any of the Ground Segment
Hardware and Licensee shall pay when due any assessments, levies, fees, taxes,
duties or other charges against the Ground Segment Hardware.
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SECTION 6 - GROUND SEGMENT HARDWARE WARRANTY
(a) Warranty. (i) Notwithstanding delivery and acceptance by
Licensee of the Ground Segment Hardware as provided in Sections 4 and 5 and
subject to the warranty conditions in this Section 6, ORBCOMM hereby warrants
that, for a period of [CONFIDENTIAL TREATMENT] months after the earlier of (A)
completion of the Gateway Acceptance Test or Supplemental Gateway Acceptance
Test, as the case may be, and (B) [CONFIDENTIAL TREATMENT] months from the
arrival of the applicable Ground Segment Hardware at the Point-of-Entry, which
nine-month period shall be extended day-for-day until ORBCOMM has completed
installation of such Ground Segment Hardware if such installation by ORBCOMM
has taken more than [CONFIDENTIAL TREATMENT] days from arrival of such Ground
Segment Hardware, free from damage, at the installation site (the "Warranty
Period"), the Ground Segment Hardware shall be free from defects in material
and workmanship and shall operate and conform in all material respects with the
performance capabilities, specifications, functions and other descriptions set
forth in the Gateway Product Specifications. ORBCOMM shall, at its expense,
repair or replace any Ground Segment Hardware that does not conform to such
warranty. ORBCOMM's obligation during the Warranty Period shall be limited to
repair or replacement of any Ground Segment Hardware for which it has provided
a warranty hereunder. Notice of all claimed defects must be provided in writing
to ORBCOMM within the Warranty Period. ORBCOMM shall determine to its
satisfaction after inspection that the product or part was defective. Any
Ground Segment Hardware repaired or replaced shall be subject only to the
original Warranty Period. The warranty set forth herein is Licensee's
exclusive remedy against ORBCOMM for any defective Ground Segment Hardware.
(ii) The warranty set forth herein shall not extend to any
portion of the Ground Segment Hardware that, upon ORBCOMM's or its
subcontractors' examination is found to have been (A) mishandled, misused or
subject to negligence, accident or abuse by Licensee or its officers,
employees, contractors, representatives, agents or consultants (other than
ORBCOMM), (B) operated or maintained contrary to ORBCOMM's specifications or
instructions or otherwise used improperly, (C) tampered with or damaged as
evidenced by, for example, broken seals, unauthorized modifications, damaged
packaging containers and the like, (D) repaired and/or altered by anyone other
than ORBCOMM or its subcontractors without ORBCOMM's prior written approval,
which approval shall not be unreasonably withheld or (E) delivered to ORBCOMM
not in conformance in all material respects with the notice requirements set
forth herein.
(b) Place of Repair. During the Warranty Period, ORBCOMM
shall have the option to repair the defective goods on-site or, if feasible,
require that the goods be returned to its or its designee's facilities;
provided that all shipping and insurance costs associated with shipment of
defective goods to ORBCOMM's designated repair facility shall be paid by
Licensee and all shipping and insurance costs associated with return shipment
of repaired goods shall be paid by ORBCOMM; and provided further, that items
found not to be defective shall be returned at Licensee's expense.
(c) Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED
IN THIS SECTION 6, TO THE FULLEST EXTENT PERMITTED BY LAW, ORBCOMM SHALL
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NOT BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH
RESPECT TO THE GROUND SEGMENT HARDWARE, THE RELATED SERVICES OR THE OTHER
SERVICES TO BE PROVIDED UNDER THIS CONTRACT. TO THE FULLEST EXTENT PERMITTED
BY LAW, ORBCOMM EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF
ORBCOMM, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO,
INCLUDING, BUT NOT LIMITED TO, (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (iii) ANY WARRANTIES AS TO
THE ACCURACY, AVAILABILITY OR CONTENT OF THE GROUND SEGMENT HARDWARE, THE
RELATED SERVICES OR THE OTHER SERVICES PROVIDED BY OR THROUGH ORBCOMM UNDER
THIS CONTRACT; AND (iv) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY UNDER
ANY THEORY OF LAW, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT
OR OTHER LEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF
FACT, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY OR
SUITABILITY FOR USE, THAT IS NOT CONTAINED IN THIS CONTRACT SHALL BE DEEMED TO
BE A WARRANTY BY ORBCOMM.
(d) Limitation of Liabilities. (i) NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY HAVE ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY TO THE OTHER UNDER THIS CONTRACT
FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
(ii) In addition, in no event shall ORBCOMM or any of the
other ORBCOMM Entities have any liability under or resulting from this
Agreement and any other Transaction Agreement:
(A) until the cumulative aggregate amount of any claims,
losses costs, expenses, damages or liabilities incurred by Licensee
for which ORBCOMM would be responsible to Licensee under or as a
result of this Agreement or any other Transaction Agreement exceeds
[CONFIDENTIAL TREATMENT] and then only to the extent of such excess;
and
(B) in the aggregate in excess of [CONFIDENTIAL
TREATMENT].
SECTION 7 - GROUND SEGMENT HARDWARE CHANGES
ORBCOMM reserves the right to change, in its sole discretion and on
terms that are commercially reasonable, any of the terms, conditions and
provisions of Sections 2, 3, 4, 5 or 6 that it deems necessary if any
applicable law in the Territory requires that (a) ORBCOMM change the design of
the Ground Segment Hardware or (b) any elements of the Ground Segment Hardware
be procured in the Territory.
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SECTION 8 - OTHER SERVICES
Upon the written request of Licensee, ORBCOMM shall provide to
Licensee the following additional services (collectively, the "Other
Services"):
(a) On-Site Technical Assistance Services. (i)
ORBCOMM shall provide Licensee On-Site Technical Assistance Services
in accordance with the terms of this Contract. On-Site Technical
Assistance Services consist of sending ORBCOMM personnel or
subcontractors to the Licensee's facilities to provide advice,
assistance, training and retraining to Licensee's employees and
customers. The number and technical background of the personnel, and
the estimated amount of time they are to spend at Licensee's
facilities, are to be mutually agreed by the parties prior to the
dispatch of the ORBCOMM personnel.
(ii) For each On-Site Technical Assistance
Service, Licensee agrees to pay to ORBCOMM [CONFIDENTIAL TREATMENT]
per person per eight hour day, five day work week, including
[CONFIDENTIAL TREATMENT] and all days spent in [CONFIDENTIAL
TREATMENT], whether [CONFIDENTIAL TREATMENT], plus [CONFIDENTIAL
TREATMENT], [CONFIDENTIAL TREATMENT] round trip transportation costs
and overtime pay at the rate of [CONFIDENTIAL TREATMENT] per hour for
all hours worked over eight hours a day or over 40 hours per week. The
prices set forth herein shall remain in effect for On-Site Technical
Assistance Services provided on or before [CONFIDENTIAL TREATMENT].
(b) Telephonic Support Services. (i) ORBCOMM
shall provide Licensee Telephonic Support Services in accordance with
the terms of this Contract. Telephonic Support Services consist of
telephonic non-emergency technical and operational advice concerning
the Licensee System including the ORBCOMM Gateway installed in the
Territory; provided that Telephonic Support Service shall not include
Provisioning Services, which will be provided pursuant to the ORBCOMM
Gateway Software License Agreement. Such advice shall be provided by
a qualified engineer or technician and shall only be available between
the hours of 9:00 a.m. and 5:00 p.m. United States Eastern Standard
Time (or United States Eastern Daylight Time as applicable) on regular
business days until the System Available Date and thereafter shall be
available seven days a week, 24 hours a day.
(ii) For Telephonic Support Services, Licensee
agrees to pay to ORBCOMM [CONFIDENTIAL TREATMENT] per hour or any
fraction thereof. The prices set forth herein shall remain in effect
for Telephonic Support Services provided on or before [CONFIDENTIAL
TREATMENT].
(c) Payment Terms. On completion of the Other
Services, ORBCOMM shall invoice Licensee for the full cost of the
Other Services performed. All amounts set forth on such invoices
shall be paid to ORBCOMM by Licensee within [CONFIDENTIAL TREATMENT]
days of the receipt by Licensee of such invoice.
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SECTION 9 - EVENTS OF DEFAULT
(a) ORBCOMM Events of Default. This Contract may be
terminated by Licensee at any time after the occurrence of any of the following
events of default:
(i) ORBCOMM shall fail to observe or perform
any of its obligations under this Contract, and such failure shall
remain uncured for a period of [CONFIDENTIAL TREATMENT] days after
receipt by ORBCOMM of written notice thereof; or
(ii) Licensee shall have terminated the Service
License Agreement pursuant to Section 9(b)(i) thereof.
(b) Licensee Events of Default. This Contract may be
terminated by ORBCOMM at any time after the occurrence of any of the following
events of default:
(i) Licensee shall fail to pay any amount due
under this Contract within [CONFIDENTIAL TREATMENT] days after receipt
of notice from ORBCOMM that such amount is due;
(ii) Licensee shall fail to observe or perform
any of its obligations under this Contract (other than breaches
specified in Sections 8(b)(i)), and such failure shall remain uncured
for a period of [CONFIDENTIAL TREATMENT] days after receipt by
Licensee of written notice thereof; or
(iii) ORBCOMM shall have terminated the Service
License Agreement pursuant to Section 9(b)(ii) thereof.
(c) Remedies On Termination. Subject to Sections 6(c) and
6(d), termination of this Contract by the party not in default in accordance
with the terms hereof shall be without prejudice to any other rights or
remedies such party shall have by law.
(d) Obligations After Termination. The obligations set forth
in Sections 6(c), 6(d), 10, 11(e), 11(k), 11(l) and 11(o) and those obligations
that relate to any amounts due and owing for any periods prior to termination
or expiration of this Contract shall survive such termination or expiration.
SECTION 10 - DISPUTE RESOLUTION
(a) Subject to the provisions of Section 11(o), in the event
of a claim or controversy regarding any matter covered by this Contract,
ORBCOMM and Licensee shall use all reasonable efforts to resolve such claim or
controversy within 60 calendar days of receipt by either party of notice of the
existence of any such claim or controversy. In the event the parties are
unable to agree on the resolution of such claim or controversy within such
period of time, either party may remove the claim or controversy for settlement
by final and binding arbitration in New York, NY, in accordance with the then
existing United States domestic rules
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of the American Arbitration Association ("AAA") (to the extent not modified by
this Section). In the event that more than one claim or controversy arises
under this Contract, such disputes may be consolidated in a single arbitral
proceeding. The arbitral tribunal shall be composed of three arbitrators.
Each of ORBCOMM and Licensee shall appoint one arbitrator. If any party shall
fail to appoint an arbitrator within 30 days from the date on which the other
party's request for arbitration has been communicated to the first party, such
appointment shall be made by the AAA. The two arbitrators so appointed shall
agree upon the third arbitrator who shall act as chairman of the arbitral
tribunal and who have significant operational expertise in geographically
distributed data communications networks. If the two appointed arbitrators
fail to nominate a chairman within ten days from the date as of which both
arbitrators shall have been appointed, such chairman shall be selected by the
AAA. In all cases, the arbitrators shall be fluent in English. Judgment upon
any award rendered by the arbitrators may be entered in any court having
jurisdiction or application may be made for judicial acceptance of the award
and an order of enforcement, as the case may be. The parties agree that if it
becomes necessary for any party to enforce an arbitral award by a legal action
or additional arbitration or judicial methods, the party against whom
enforcement is sought shall pay all reasonable costs and attorney's fees
incurred by the party seeking to enforce the award.
(b) Pending a final determination by the arbitrators, if the
claim or controversy concerns the payment by Licensee of any fees or amounts
due hereunder (including the right to conduct an audit of such fees or
amounts), ORBCOMM shall have the right to terminate Licensee's access to the
ORBCOMM System and, in the event ORBCOMM elects to exercise such right and
notwithstanding any determination by the arbitrators, Licensee's sole remedy
for such termination by ORBCOMM shall be an extension of the term of this
Contract equal to the period during which Licensee was denied access to the
ORBCOMM System.
(c) Except with respect to the application of Section 11(o)
hereof, the rights of the parties under this Section 10 shall be the exclusive
remedy with respect to any claim or controversy regarding any matter covered by
this Contract.
SECTION 11 - MISCELLANEOUS
(a) Compliance With Laws. Each of the parties shall comply
in all material respects with all applicable laws, rules and regulations of any
applicable Governmental Authority in the performance of its obligations
hereunder. In particular, Licensee agrees to comply with all applicable laws
of the United States regarding export controls, international traffic in arms
regulations and foreign corrupt practices. In addition, but not in limitation
of the foregoing, summaries of the current provisions of the United States
Federal International Traffic in Arms Regulations and of the Prohibited Foreign
Trade Practices Act are set forth in Attachment 4.
(b) Notices. All notices given under this Contract must be
in writing and sent by hand delivery, by overnight courier, by facsimile
transmission (answer back received) or by international registered mail, return
receipt requested and postage prepaid, to:
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ORBCOMM:
ORBCOMM International Partners, L.P.
21700 Atlantic Boulevard
Dulles, VA 20166, USA.
Telecopy: +1.703.406.3504
Attention: Senior Vice President, Engineering and Operations
with a copy to:
ORBCOMM Global, L.P.
21700 Atlantic Boulevard
Dulles, VA 20166, USA
Telecopy: +1.703.404.8012
Attention: Vice President and General Counsel
Licensee:
Cellular Communications Network (Malaysia) Sdn. Bhd.
1st Floor Menara TR
161B Jalan Ampany
50450 Kuala Lumpur, Malaysia
Telecopy: +603.260.5381
Attention: Senior Vice President
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to either Licensee or ORBCOMM shall
be effective the earlier of (i) ten business days after the date of mailing by
sender, or (ii) the date of actual receipt.
(c) Successors and Assigns. This Contract shall be binding
upon the parties, their successors and permitted assigns. Subject to Section
10 of the Service License Agreement, neither this Contract nor any interests or
duties of Licensee hereunder may be assigned in whole or in part (by operation
of law or otherwise) by Licensee without the express written consent of
ORBCOMM, which consent shall not be unreasonably withheld.
(d) Entire Agreement. This Contract and all attachments
(which are hereby made part of this Contract) contain the entire understanding
between Licensee and ORBCOMM and supersede all prior written and oral
understandings relating to the subject hereof. No representations, agreements,
modifications 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 Contract must be in writing and signed by
both parties.
(e) Governing Law and Jurisdiction. (i) The construction,
interpretation and performance of this Contract, as well as the legal relations
of the parties arising hereunder,
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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. The United Nations Convention on Contracts for the International Sale
of Goods (1980) shall not apply to any provisions of this Contract. Neither
party may bring any action for a claim under this Contract later than one year
after the termination of this Contract; provided that claims under any
provision of this Contract that survives termination of this Contract may be
brought within one year of the later of the occurrence of the event giving rise
to the claim and actual knowledge thereof by the party asserting such claim.
(ii) For purposes of Section 11(o), Licensee by its execution hereof
(A) hereby irrevocably submits to the nonexclusive jurisdiction of the state
courts of the State of New York and to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York, for the
purpose of any suit, action or other proceeding arising out of or based upon
this Contract or the subject matter hereof brought by ORBCOMM and (B) hereby
waives to the extent not prohibited by law, and agrees not to assert, by way of
motion, as a defense or otherwise, in any such proceeding, any claims that it
is not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that this
Contract or the subject matter hereof may not be enforced in or by such court.
Licensee hereby consents to service of process in any such proceeding in any
manner permitted by the laws of the State of New York and agrees that service
of process by international registered mail, return receipt requested, at the
address specified in or pursuant to Section 11(b) hereof is reasonably
calculated to give actual notice. Licensee agrees that at ORBCOMM's request it
will appoint an agent for service of process within the State of New York.
(f) Force Majeure. Neither party shall be held responsible
for failure or delay in performance or delivery if such failure or delay is the
result of an act of God, the public enemy, embargo, governmental act, fire,
accident, war, riot, strikes, inclement weather or other cause of a similar
nature that is beyond the control of the parties. In the event of such
occurrence, this Contract shall be amended by mutual agreement to reflect an
extension in the period of performance and/or time of delivery. Failure to
agree on an equitable extension shall be considered a claim or controversy and
resolved in accordance with Section 10.
(g) Waiver. It is understood and agreed that no failure or
delay by either ORBCOMM or Licensee 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 Contract shall be deemed to be a waiver of any
subsequent breach of any term or condition. All waivers must be in writing and
signed by the party sought to be bound.
(h) Severability. If any part of this Contract shall be held
unenforceable, the remainder of this Contract will nevertheless remain in full
force and effect.
(i) Headings. Headings in this Contract are included for
convenience of reference only and shall not constitute a part of this Contract
for any other purpose.
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(j) Independent Contractors. Licensee and ORBCOMM are
independent contractors to one another, neither party has the authority to bind
the other in any way or to any third party, and nothing in this Contract shall
be construed as granting either party the right or authority to act as a
representative, agent, employee or joint venturer of the other.
(k) Non-Disclosure. Each of the parties to this Contract
acknowledge the execution of the Mutual Non-Disclosure Agreement dated as of
October 10, 1996 and each agrees to observe the provisions thereof.
(l) English Language; Communication in English. The parties
recognize and agree that while this Contract may be translated into other
languages, the English language version of this Contract shall be the official
version of this Contract and shall prevail if any dispute in the interpretation
of this Contract between such languages arises between the parties. The
parties agree that all communications, notices or any written material to be
provided by ORBCOMM to Licensee or by Licensee to ORBCOMM under this Contract
shall be in the English language or accompanied by an accurate and complete
translation into English.
(m) Calendar. The Gregorian calendar shall be used in
calculating, invoicing and paying all amounts due under this Contract.
(n) Payments. All payments due and payable to ORBCOMM
hereunder shall be paid in U.S. Dollars in immediately available funds to the
bank account specified by ORBCOMM in writing. ORBCOMM shall have the right to
require Licensee to make a cash deposit or to provide ORBCOMM with an
irrevocable letter of credit in favor of ORBCOMM issued by a bank reasonable
acceptable to ORBCOMM.
(o) Equitable Relief. Each of the parties acknowledges that
the goods and services provided pursuant to this Contract are unique and
recognizes and affirms that in the event of any breach of this Contract by it,
money damages may not be adequate and the other party may have no adequate
remedy at law. Accordingly, each of the parties agrees that the other party
shall have the right, in addition to any other rights and remedies existing in
its favor, to enforce its rights and the other party's obligations hereunder
not only by an action or actions for damages but also an action or actions for
specific performance, injunctive relief and/or other equitable relief.
(p) Taxes. All payments owed by Licensee hereunder shall be
made free and clear of any deductions or withholding for taxes, contributions
or otherwise and of any liability thereof. In the event Licensee is required
by any applicable Governmental Authority to withhold any amount from any
payment made hereunder, the relevant amount payable shall be increased by such
amount as is necessary to make the actual amount received by ORBCOMM after such
withholding equal to the amount that would have been received had no
withholding been required, and Licensee shall make such withholding and pay the
amount withheld to the relevant taxation authority. Licensee shall obtain from
the applicable Governmental Authority and forward to ORBCOMM a certificate of
payment of such withholding tax or deduction in such form as shall be
acceptable to the tax authorities having jurisdiction over ORBCOMM.
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IN WITNESS WHEREOF, the parties have caused this Contract
to be executed as of the day and year first above written.
ORBCOMM INTERNATIONAL PARTNERS, L.P.
By:
--------------------------------
Name: Alan L. Parker
Title: President
CELLULAR COMMUNICATIONS NETWORK
(MALAYSIA) SDN. BHD.
By:
--------------------------------
Name: Noor Kamarul Amor Nuruddin
Title: Senior Vice President
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