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EXHIBIT 10.10
ORBCOMM SERVICE LICENSE AGREEMENT
FOR CANADA
This Service License Agreement (the "Agreement") is entered into this
19th day of December 1995, between ORBCOMM INTERNATIONAL PARTNERS, L.P.
("ORBCOMM"), whose principal place of business is 21700 Atlantic Boulevard,
Dulles, Virginia, 20166, USA, and ORBCOMM Canada Inc. (the "Licensee"), whose
principal place of business is 1000, rue de la Gauchetiere ouest, Montreal,
Quebec, Canada H3B 4X5.
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" and is further generally described in
Attachment A, which attachment shall not be deemed to be a representation or
warranty with respect to the ORBCOMM System;
WHEREAS, the initial two satellites for the ORBCOMM System were
launched in April 1995 and are expected to be commercially available in the
United States for the transmission of intermittent short messages;
WHEREAS, ORBCOMM Global has entered into a contract with Orbital
Sciences Corporation for the construction and launch of an additional 24
ORBCOMM System satellites, and the construction of an additional ten
satellites;
WHEREAS, OCC has been awarded full United States Federal
Communications Commission authority to construct, launch and operate the
ORBCOMM System in the United States;
WHEREAS, ORBCOMM Global plans to market satellite-based, two-way
message and data communication or 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 and has
granted ORBCOMM the right to market ORBCOMM Services worldwide outside the
United States;
WHEREAS, ORBCOMM has been granted the authority to use the "ORBCOMM"
logo, trademark and service mark and other similar intellectual property in
connection with the marketing of the ORBCOMM System internationally; and
WHEREAS, ORBCOMM and Licensee wish to enter into an agreement pursuant
to which, subject to certain terms and conditions, ORBCOMM authorizes Licensee
to access the satellites in the ORBCOMM System and to have use of certain other
related assets for purposes of Licensee offering on an exclusive basis
communication services using the ORBCOMM System in the country or countries and
in any other locations listed in Attachment B (the "Territory").
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NOW, THEREFORE, the parties agree as follows:
SECTION 1 - DEFINED TERMS
"AAA" shall have the meaning assigned thereto in Section 18(a).
"Acceptance Specifications" shall have the meaning assigned thereto in
Section 3(b)(ii).
"Affiliate" shall mean, with respect to any person (a) any person that
directly, or indirectly through one or more intermediaries, controls such
person or (b) any person (other than a subsidiary of such person) that is
controlled by or is under common control with a controlling 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.
"Billing Software" shall have the meaning assigned thereto in Section
9.
"Contracting Licensee" shall have the meaning assigned thereto in
Section 10(a)(ii).
"Data Throughput Rate" shall have the meaning assigned thereto in
Section 8(a)(i).
"Effective Date" shall mean the date of execution of this Agreement.
"GES" shall mean any of the fixed-Earth stations that are part of the
ground segment of the ORBCOMM System and are used to communicate (a) by VHF
radio with the Satellites and (b) by microwave, cable, geostationary very small
aperture terminal or any other means with a NCC or the Satellite Control
Center.
"Ground Segment Hardware" shall have the meaning assigned thereto in
Section 4(a).
"Governmental Authority" shall have the meaning assigned thereto in
Section 3(a)(ii).
"Initial Purchase" shall have the meaning assigned thereto in Section
4(b)(i).
"Intermittent Service Problem" shall have the meaning assigned thereto
in Section 16(a).
"License" shall have the meaning assigned thereto in Section 2(a).
"Licensee Event of Default" shall have the meaning assigned thereto in
Section 12(b)(ii).
"Licensee System" shall have the meaning assigned thereto in Section
3(a)(i).
"License Fee" shall have the meaning assigned thereto in Section 6(b).
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"Multinational Account" shall have the meaning assigned thereto in
Section 10(a)(i).
"Multinational Account Customer" shall have the meaning assigned
thereto in Section 10(a)(i).
"NCC" shall mean the network control center facilities consisting of
computers, displays, control consoles, communications equipment and other
hardware that control the flow of data and message communications and other
information for the ORBCOMM System.
"On-Site Technical Assistance Services" shall have the meaning
assigned thereto in Section 5(b).
"Operable Satellite" shall mean a Satellite that is being used by any
of ORBCOMM Global, ORBCOMM or ORBCOMM USA for the provision of revenued service
using the ORBCOMM System.
"ORBCOMM Entities" shall have the meaning assigned thereto in Section
3(a)(v).
"ORBCOMM Identity Manual" shall have the meaning assigned thereto in
Section 3(a)(vi).
"ORBCOMM System Number" shall mean the unique subscriber communicator
address assigned to a "Subscriber Communicator."
"ORBCOMM System Software" shall have the meaning assigned thereto in
Section 2(a).
"ORBCOMM System Software Maintenance Fee" shall have the meaning
assigned thereto in Section 7(a).
"Other Services" shall have the meaning assigned thereto in Section 5.
"Permits" shall have the meaning assigned thereto in Section 3(a)(ii).
"Point-of-Entry" shall have the meaning assigned thereto in Section
4(e).
"Quality Inspection" shall have the meaning assigned thereto in
Section 3(a)(v).
"Related Services" shall have the meaning assigned thereto in Section
4(b)(i).
"Repeat System Acceptance Services" shall have the meaning assigned
thereto in Section 5(a).
"Reseller Agreement" shall have the meaning assigned thereto in
Section 2(d).
"Resellers" shall have the meaning assigned thereto in Section 2(d).
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"Revenue Dependent Amount" shall have the meaning assigned thereto in
Section 8(a)(i).
"Revenue Dependent Fee Percentage" shall have the meaning assigned
thereto in Section 8(a)(i).
"Satellites" shall mean any of the low-Earth orbit satellites
comprising the ORBCOMM System.
"Satellite Control Center" shall mean the facilities that process and
display the telemetry data for the Satellites, monitor the operational status
of the Satellites and control the operation of the Satellites' power
subsystems, attitude control subsystems and all other subsystems.
"Satellite Usage Fee" shall have the meaning assigned thereto in
Section 8.
"Servicing Licensee" shall have the meaning assigned thereto in
Section 10(a)(iii).
"Software License Agreement" shall have the meaning assigned thereto
in Section 9.
"Subscriber" shall mean a customer purchasing access to the ORBCOMM
System from Licensee or a Reseller (or agent or subagent thereof) of Licensee.
"Subscriber Base Rate" shall have the meaning assigned thereto in
Section 8(a)(i).
"Subscriber Communicator" shall mean the equipment used by a remote
Subscriber to provide access to the ORBCOMM System that has been "Type
Approved" by or on behalf of ORBCOMM and to which a unique serial number and
ORBCOMM System Number have been assigned.
"System Available Date" shall mean the day after the date hereof on
which ORBCOMM declares that the first plane of Satellites, excluding FM-1 and
FM-2, have completed on-orbit testing.
"System Acceptance Test" shall have the meaning assigned thereto in
Section 4(b)(iii).
"Territory" shall have the meaning assigned thereto in the whereas
clauses hereof, as such definition may be modified from time to time pursuant
to Section 3(a)(ii).
"Type Approved" shall mean a series of tests conducted by or on behalf
of ORBCOMM that determines that a subscriber communicator successfully meets
ORBCOMM System requirements and United States Federal Communications Commission
and any licensing requirements of any applicable Governmental Authority.
"Warranty Period" shall have the meaning assigned thereto in Section
4(g).
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SECTION 2 - GRANT OF LICENSE
(a) For purposes of Licensee offering ORBCOMM System communication
services in the Territory, ORBCOMM grants to Licensee an exclusive license in
the Territory (the "License") to access and/or use (i) the Satellites while
they are within view of any of the Subscriber Communicators located in the
Territory and any of Licensee's GESs or the GESs shared by Licensee to the
extent permitted by Section 4(b)(i), (ii) the ORBCOMM System software owned or
controlled by any of the ORBCOMM Entities necessary to operate the Licensee
System (the "ORBCOMM System Software"), (iii) the ORBCOMM System operating
methods and (iv) if permitted by law, the "ORBCOMM" logo, trademark, service
mark and name, in accordance with the terms and conditions set forth in this
Agreement; provided that Licensee shall not be entitled to access and/or use of
the Satellites unless the Licensee System complies with the Acceptance
Specifications. Notwithstanding the grant of the License, ORBCOMM reserves and
shall have the right to access and/or use the ORBCOMM System in the Territory,
free of charge, for purposes of conducting maintenance, testing, operational
and other related ORBCOMM System functions.
(b) ORBCOMM reserves the right to grant to other licensees the
right to use the ORBCOMM System, and the ORBCOMM System Software, operating
methods, logo, trademark and name in any area outside the Territory. To the
extent permitted by applicable law, upon the receipt of all necessary Permits
from the applicable Governmental Authorities and without the prior approval of
ORBCOMM, Licensee may provide, on a non-exclusive basis, the ORBCOMM Services
to Subscriber Communicators located in international waters.
(c) Notwithstanding the grant of the License, the ORBCOMM System,
the ORBCOMM concept, design, software (including the ORBCOMM System Software),
operating methods, logos, trademarks, service marks and name, all copyright,
other proprietary and intellectual property rights and all other tangible and
intangible property rights with respect thereto are and shall remain the sole
and exclusive property of OCC, ORBCOMM, ORBCOMM Global or the software
developer, as the case may be.
(d) Licensee may authorize other entities ("Resellers") to market and sell
access to the ORBCOMM System in the Territory. Licensee shall execute an
agreement (the "Reseller Agreement") with each Reseller that shall contain, at
a minimum, the terms and conditions shown in Attachment C.
SECTION 3 - SCOPE OF AGREEMENT
(a) Responsibilities of Licensee. Licensee shall:
(i) Procure and install in the Territory, either
directly or through a wholly owned subsidiary, a ground segment that
shall consist of (A) one NCC and at least [CONFIDENTIAL TREATMENT]
GESs, the GESs being located such that the ORBCOMM Services may be
provided in all parts of the Territory, and (B) the telecommunication
facilities required to connect the NCC to such GESs and to the public
switched network (collectively, the "Licensee
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System"). The Licensee System must successfully meet the acceptance
test procedures and acceptance criteria set forth in the Acceptance
Specifications and shall be in place in accordance with the timetable
set forth in this Agreement. The procurement and installation of the
Licensee System shall be at Licensee's sole expense;
(ii) Apply for and use all commercially reasonable
efforts to obtain promptly, and at all times maintain, at its sole
expense, all approvals, licenses, authorizations and permits (the
"Permits") from any applicable Canadian, regional, provincial, local
or other governmental agency or authority ("Governmental Authority")
necessary (A) to develop, construct, implement and operate the
Licensee System in the Territory, including any necessary in-country
environmental impact studies, (B) to provide ORBCOMM Services in the
Territory, and (C) to use Subscriber Communicators with the Licensee
System in the Territory. In the event there is more than one country
in the Territory, the Permits shall be obtained and maintained for
each country in the Territory, provided that if Permits are not
obtained for any of the countries in the Territory, ORBCOMM shall have
the right to delete such country from the definition of the Territory,
provided, however that ORBCOMM shall not be entitled to exercise this
right until two years after the System Available Date. In addition,
if any previously granted Permit for a country is withdrawn for any
reason, ORBCOMM shall have the right to delete that country from the
definition of the Territory;
(iii) Commence operation of the Licensee System no
later than four months after the later of (A) completion of the System
Acceptance Test of the equipment comprising the Initial Purchase and
(B) the date when Licensee obtains all the Permits necessary from the
Governmental Authorities in Canada;
(iv) Use all commercially reasonable efforts to
advertise, promote and market the Licensee System in the Territory,
which advertising, promotion and marketing shall occur, to the extent
permitted by applicable law, under the name "ORBCOMM Canada" in
accordance with Section 3(a)(vi), and submit to ORBCOMM by January 1
and June 1 of each year a copy of its marketing communications plan
covering the next six months that includes a general description of
the advertising, promotional and marketing efforts for such period;
(v) Operate, directly or indirectly through
Resellers or otherwise, the Licensee System in a manner so as not to
injure the reputation of OCC, Teleglobe Mobile, ORBCOMM Global,
ORBCOMM USA or ORBCOMM (collectively, the "ORBCOMM Entities") or the
ORBCOMM System or otherwise adversely impact the operations or
commercial viability of any other system that uses the ORBCOMM System
and is operated by or on behalf of any of the ORBCOMM Entities or a
licensee of one of the foregoing. Licensee shall permit ORBCOMM
and/or its representatives access to the Licensee System for the
purpose of performing a quality inspection (the "Quality Inspection"),
which shall be conducted to determine compliance with the provisions
of this Agreement including this Section 3(a)(v). The Quality
Inspection (A) may be conducted only after ORBCOMM has given the
Licensee seven days prior written notice thereof, (B) shall be
conducted in a way that causes as little interference
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as possible with Licensee's normal business operations, and (C) may
include a System Acceptance Test that requires some assistance from
Licensee's personnel. Quality Inspections shall not be performed more
frequently than once per year unless ORBCOMM has a reasonable basis to
believe that the Licensee System is not meeting the standards set
forth herein. All costs of Quality Inspections shall be borne by
ORBCOMM, provided that Licensee shall be responsible for the
reasonable out-of-pocket costs associated with the assistance received
by ORBCOMM from Licensee's personnel specified in clause (C) above;
(vi) (A) To the extent permitted by applicable law,
during the term of this Agreement and only so long as such use is in
accordance with the terms and conditions set forth herein, use the
ORBCOMM logos and all ORBCOMM trademarks and service marks, which
Licensee acknowledges are owned by ORBCOMM or its Affiliates, in
Licensee's marketing and advertising for the Licensee System. All
such marketing and advertising that contains references to the ORBCOMM
System, OCC, ORBCOMM Global or ORBCOMM shall be in accordance with the
ORBCOMM Identity Manual, the current version of which is attached
hereto as Attachment D and which may be modified by ORBCOMM after
giving Licensee five business days prior written notice (the "ORBCOMM
Identity Manual"), provided that, for a period of six months from the
receipt of such notice, Licensee shall be entitled to continue to use
all existing marketing materials that previously complied with the
ORBCOMM Identify Manual. Licensee shall be required to obtain the
prior written consent of ORBCOMM for all such marketing or
advertising; provided that if Licensee complies with the ORBCOMM
Identity Manual, the advance written approval of ORBCOMM shall not be
required. Licensee shall obtain all Permits from all applicable
Governmental Authorities to use ORBCOMM logos, trademarks and service
marks. To the extent ORBCOMM or any of the other ORBCOMM Entities has
not otherwise previously done so and to the extent permitted by law,,
Licensee shall register such logos, trademarks and service marks in
ORBCOMM Global's name for use by Licensee in the Territory. Prior to
registering such logos, trademarks and service marks in ORBCOMM
Global's name, Licensee shall advise ORBCOMM of its intent to do so
and of the out-of-pocket costs that it expects to incur. Upon receipt
of ORBCOMM's written consent, Licensee shall proceed with such
registration and, upon completion of the process, shall be reimbursed
by ORBCOMM for the actual out-of-pocket costs incurred by it up to an
amount equal to its out-of-pocket cost estimate. Any modification or
partial use of the word "ORBCOMM" for a logo, trademark, service mark
or trade name shall also require the prior written approval of
ORBCOMM;
(B) Cooperate with ORBCOMM in providing reasonable support
and any information that may be required in the defense in the
Territory of the ORBCOMM logo and all ORBCOMM trademarks and service
marks as a result of their use pursuant to this Agreement; and
(C) During the term of this Agreement and thereafter, not (x)
engage in any activities or commit any acts that may, directly or
indirectly, contest, dispute or otherwise impair ORBCOMM's or its
Affiliates' right, title and interest in such logos,
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trademarks and service marks or (y) directly or indirectly, re-license
use of the ORBCOMM logo or any ORBCOMM trademarks and service marks to
any other person, other than with respect to any Reseller or its
Agents or Subagents, without the express written consent of ORBCOMM;
(vii) Pay to ORBCOMM the fees, costs and other
payments set forth in this Agreement;
(viii) Give ORBCOMM and its representatives reasonable
access during normal business hours to Licensee's books, accounts,
records, contracts and documents concerning the Licensee System and
use of the ORBCOMM logos, trademarks and service marks for the purpose
of determining compliance by Licensee with the terms of this
Agreement;
(ix) In addition to ORBCOMM's access and/or use of
the ORBCOMM System in the Territory permitted by Section 2(a), permit
ORBCOMM and/or its representatives or Affiliates, at their sole
expense, to directly and electronically communicate with (A)
Licensee's NCC for the purpose of assessing the number and types of
Subscriber Communicators registered with the Licensee System and their
usage and the amount of data relayed through any of the Satellites,
(B) the Licensee System for the purpose of verifying the reported
amount of the gross operating revenues as specified in Section 8 and
assisting Licensee in the maintenance and repair of the Licensee
System and (C) the Satellites through the Licensee System for the
purposes of ascertaining a Satellite's state-of-health and sending
commands to it;
(x) Include provisions substantially identical to
those set forth in Section 17 in its contracts or agreements with each
of the distributors, Resellers and Subscribers for the Licensee
System;
(xi) Use the ORBCOMM System Software only to operate
the Licensee System, and shall not copy or disclose, sell, distribute
or re-license such software to any other person or entity or reverse
engineer or compile or disassemble such software;
(xii) Not discriminate against any Subscriber because
such Subscriber purchased or obtained its Subscriber Communicator from
one source versus another and not offer service to Subscribers, who
buy or lease their Subscriber Communicators from Licensee or an
Affiliate of Licensee, at a price that is lower than that at which
similar ORBCOMM Services are offered to Subscribers who obtain their
Subscriber Communicators from another source;
(xiii) To the extent permitted by law and except as
permitted in Section 10, not register Subscriber Communicators, the
billing address for which is outside the Territory unless otherwise
agreed to in advance in writing by ORBCOMM Global;
(xiv) (A) To the extent permitted by law, offer to
provide service to any reseller that has been approved as an ORBCOMM
Service reseller by ORBCOMM
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USA, at substantially the same rates, terms and conditions as it
offers other, similar resellers of the ORBCOMM Services in the same
country in the Territory, or if there are no similar resellers in such
country, then at rates, terms and conditions that are commercially
reasonable, so long as such reseller is not in default under its
reseller agreement with ORBCOMM USA;
(B) To the extent permitted by law, offer to provide service
to any reseller that has been accredited as an approved ORBCOMM
Service reseller by another ORBCOMM service licensee (outside the
United States), at substantially the same rates, terms and conditions
as it offers other, similar resellers of the ORBCOMM Services in the
same country in the Territory, or if there are no similar resellers in
such country, then at rates, terms and conditions that are
commercially reasonable; provided, however, that in the event Licensee
does not desire to provide service to any such Reseller, Licensee
shall provide ORBCOMM with its reasons therefor and request that
ORBCOMM review such reseller for the purpose of either approving or
disapproving such reseller as an accredited ORBCOMM Service reseller.
In the event such reseller is accredited as an approved ORBCOMM
Service reseller by ORBCOMM, Licensee shall be required to offer to
provide service to such reseller in accordance with this Section
3(a)(xiv); provided that in determining whether to accredit such
reseller as an approved ORBCOMM Service reseller for the Territory
ORBCOMM shall take into account whether other ORBCOMM service
licensees for which such reseller is an accredited reseller have a
provision in their service license agreement substantially similar to
the terms and conditions set forth in this Section 3(a)(xiv)(B). If
such reseller is not so accredited by ORBCOMM, Licensee shall be under
no obligation to provide service to such reseller in accordance with
this Section 3(a)(xiv)(B);
(xv) Offer to provide in the Territory the full
range of ORBCOMM Services that are described in the ORBCOMM Service
Description, as it may be amended from time to time, the current
version of which is attached hereto as Attachment E;
(xvi) Promptly advise ORBCOMM in writing if Licensee
or any of its Affiliates acquires any ownership or other economic
interest in a Reseller. In such cases, ORBCOMM shall have the right
to examine the terms and conditions of the Reseller Agreement for the
purpose of determining whether such Reseller is being given any
preferential treatment regarding, among other things, the price it
pays for ORBCOMM Services. If in ORBCOMM's sole opinion, such
preferential treatment exists, then ORBCOMM shall have the right to
require, in its sole discretion, either that such preferential
treatment immediately cease or that Section 8 of this Agreement be
amended as appropriate. In addition, ORBCOMM shall have the right to
make a retroactive adjustment to previously paid Satellite Usage Fees;
(xvii) Prior to the commencement of the provision of
ORBCOMM Services in the Territory and within 15 days after the end of
each calendar quarter thereafter, submit to ORBCOMM in writing a full
description of its prices and pricing strategy for the provision of
ORBCOMM Services. Such description shall also address the issues of
competitive pricing in the Territory and demonstrate that the pricing
strategy and the
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prices serve the purpose of maximizing revenues and of making
efficient and appropriate use of the Satellites..
(xviii) On the first anniversary of the commencement of
the provision of ORBCOMM Services in the Territory, and annually
thereafter, submit to ORBCOMM in writing an operations report of the
usage of ORBCOMM Services in the Territory. Such report shall include
an analysis of the statistical data on message lengths, message
frequencies, time of day, day of week and seasonal usage for each
service offering and market segment served by Licensee. If not written
in the English language, such report shall be accompanied by a true
and complete English translation thereof;
(xix) Participate with ORBCOMM in the preparation of
traffic forecasts;
(xx) Send ORBCOMM written notice of when the
Licensee System commences operation;
(xxi) Pay all Canadian, provincial, federal, state,
local and other taxes, including but not limited to sales, use, gross
receipts, and excise taxes and withholding, that arise from the
performance of its duties under this Agreement, including the payment
of all fees and other amounts due and owing hereunder, and 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 the Ground Segment Hardware; and
(xxii) Charge Resellers and Subscribers, if License
provides services directly to Subscribers, a long message surcharge,
the amount of which shall be at least [CONFIDENTIAL TREATMENT] (or its
equivalent in Canadian dollars) for each message whose length is
between [CONFIDENTIAL TREATMENT] and [CONFIDENTIAL TREATMENT] bytes,
inclusive, and at least [CONFIDENTIAL TREATMENT] (or its equivalent in
Canadian dollars) for each message whose length exceeds [CONFIDENTIAL
TREATMENT] bytes.
(b) Responsibilities of ORBCOMM. ORBCOMM shall:
(i) Cooperatively work with and encourage the
manufacturers and suppliers of Subscriber Communicators to offer such
Communicators within one year of the Effective Date for sale or lease
in the Territory, either directly or through distributors, one of
which may be Licensee;
(ii) As soon as available , provide written
acceptance test procedures and acceptance criteria for the Licensee
System (the "Acceptance Specifications"), which criteria must be
successfully met by the Licensee System prior to ORBCOMM authorizing
Licensee to access the ORBCOMM System. Such criteria shall be
sufficient to ensure that all the features and functions of the
Licensee System are operating properly and in a manner compatible with
the ORBCOMM System;
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(iii) Within six months of the order for the Initial
Purchase equipment, provide written operating and maintenance manuals
for the NCC and GESs to be located in the Territory;
(iv) Assist Licensee in providing data relating to
the ORBCOMM System required by any Governmental Authority in
connection with Licensee obtaining any of the Permits if ORBCOMM
determines that Licensee cannot reasonably provide such data itself;
provided that written data that exists or that ORBCOMM can readily
compile from existing data shall be provided at ORBCOMM's expense and
other written data or any data required to be presented in person or
orally shall be provided at Licensee's expense; and provided further
that ORBCOMM shall not be required to disclose any such data unless
ORBCOMM reasonably believes that such data will be maintained by the
receiving party on a confidential basis;
(v) Use commercially reasonable efforts to provide
24-hour a day emergency technical advice concerning the operation,
maintenance and repair of the Licensee System. Requests for emergency
technical advice may be made by telephone or facsimile and the advice
may be provided by ORBCOMM using such similar means, with all
communications conducted in the English language; provided that if, in
ORBCOMM's sole discretion, the nature of these requests or their
frequency indicate that Licensee's operators or technicians are
technically inadequate for their tasks, ORBCOMM may require that these
employees be retrained (or, at Licensee's option, replaced) at
Licensee's cost, or ORBCOMM may charge for this advice in accordance
with Section 5; and provided further that, until three (3) months
after the System Available Date, emergency technical advice 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;
(vi) Implement advertising and other promotional
programs for the ORBCOMM System, the scope and timing of which shall
be in ORBCOMM's sole discretion;
(vii) Provide the maintenance and support services
described in Attachment F, for the ORBCOMM System Software;
(viii) 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 sold) to the
Territory and, to the extent necessary, the rendering of the Related
Services or the Other Services in the Territory and (B) all necessary
visas and work permits for its personnel who will be traveling in the
Territory 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;
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(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; and
(x) Cause ORBCOMM USA to offer to any of Licensee's
Resellers rights substantially similar to those set forth in Section
3(a)(xiv)(A) and use all good faith effort to cause all other ORBCOMM
Service licensees to offer to any of Licensee's Resellers rights
substantially similar to those set forth in Section 3(a)(xiv)(B).
SECTION 4 - GROUND SEGMENT HARDWARE
(a) Ground Segment Design. To the fullest extent permitted by
law, the parties to this Agreement acknowledge and agree that the ground
segment hardware of the NCC and the GESs (the "Ground Segment Hardware") is
unique to the ORBCOMM System and has 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 the Ground Segment Hardware to be used in
the Territory and that the Ground Segment Hardware be installed, integrated and
tested by ORBCOMM.
(b) Purchase and Sale of Ground Segment Hardware and Related
Services.
(i) (A) Licensee agrees to purchase from ORBCOMM,
directly or through an Affiliate of ORBCOMM, and ORBCOMM agrees to
sell to Licensee or to its wholly owned subsidiary, the Ground Segment
Hardware and related construction, installation, integration, test and
training services (the "Related Services") necessary to construct,
install and operate the NCC and GES(s) in the Territory. A list of
the major components of the Ground Segment Hardware and a general
description of the Related Services is contained in Attachment G to
this Agreement. Notwithstanding the foregoing, the parties agree that
Licensee need not purchase all the Ground Segment Hardware for the
specified NCC and GES(s) and the Related Services at the same time.
The initial minimum purchase (the "Initial Purchase") shall be for the
NCC and for [CONFIDENTIAL TREATMENT] single-antenna GES, and the
Related Services associated with the construction, installation,
integration, test and training associated with such hardware. The
order for the Initial Purchase shall be placed by Licensee before July
1, 1996, and if not so placed, it shall be deemed to have been placed
by Licensee and accepted by ORBCOMM on July 1, 1996. Thereafter,
Licensee shall purchase from ORBCOMM the Ground Segment Hardware and
the Related Services for the additional GES sites, and the Ground
Segment Hardware and the Related Services to upgrade any
single-antenna GES to the dual-antenna configuration, such that all of
the hardware required in Section 3(a)(i) is ordered within six months
of the System Available Date.
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(B) Notwithstanding the foregoing, the purchase of any part
of the Ground Segment Hardware may be delayed if Licensee contracts
with another ORBCOMM System licensee to share the use of such other
licensee's ground segment hardware, so long as in ORBCOMM's sole
opinion determined from time to time such 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. Licensee
shall immediately notify ORBCOMM of the occurrence of a default or 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. ORBCOMM and Licensee acknowledge that
they have concurrently herewith entered into a Ground Segment
Facilities Use Agreement relating to the use by Licensee of the US
Ground Segment Hardware as defined therein. The parties agree that
the responsibilities of Licensee under this Section 4 with respect to
the purchase (and accordingly, the installation and maintenance) of
the License System shall be deferred until the termination of the
Ground Segment Facilities Use Agreement.
(ii) Licensee shall acquire and make available for
use, within six months of the placing any order for Ground Segment
Hardware and the Related Services, certain land, buildings, utilities
and facilities that are listed in Attachment H. Licensee shall be
responsible and shall arrange for import of the Ground Segment
Hardware into the Territory and its shipment from the Point-of-Entry
in the Territory to the installation sites.
(iii) ORBCOMM shall provide all the Ground Segment
Hardware and Related Services, other than those items listed in
Attachment H, necessary to allow Licensee to commence operation of the
Licensee System, including the performance of a System Acceptance Test
to ensure and certify that the Licensee System is meeting the
requirements of the Acceptance Specifications (the "System Acceptance
Test").
(c) 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 NCC and for
one GES, which will be in a single-antenna configuration,
[CONFIDENTIAL TREATMENT];
(ii) For subsequent purchases, [CONFIDENTIAL
TREATMENT] for each single-antenna configured GES, plus [CONFIDENTIAL
TREATMENT] for each dual-antenna configured GES, plus [CONFIDENTIAL
TREATMENT] for each upgrade of an existing single-antenna GES from the
single- to the dual-antenna configuration; and
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(iii) If an order for both an Initial Purchase and an
upgrade of the single-antenna GES to a dual-antenna configuration is
placed at the same time, [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 equitable and based on industry conditions,
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]. 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.
(d) Payment Terms.
(i) For the Initial Purchase, Licensee shall pay
ORBCOMM (A) the sum of [CONFIDENTIAL TREATMENT] on [CONFIDENTIAL
TREATMENT], (B) [CONFIDENTIAL TREATMENT] percent of the applicable
price specified in Section 4(c) less [CONFIDENTIAL TREATMENT], (C)
[CONFIDENTIAL TREATMENT] percent upon receipt by Licensee of a
[CONFIDENTIAL TREATMENT] and (D) [CONFIDENTIAL TREATMENT] percent at
[CONFIDENTIAL TREATMENT], however, that in the event it is not
possible for any reason to [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; and
provided, further that the first payment of [CONFIDENTIAL TREATMENT]
for the Initial Purchase shall be refunded to Licensee only if this
Agreement is terminated for any reason before the Initial Purchase
order is placed or deemed to be placed. In no other instance will
ORBCOMM be obligated to refund the initial payment of [CONFIDENTIAL
TREATMENT].
(ii) For all subsequent purchases, Licensee shall
pay ORBCOMM (i) [CONFIDENTIAL TREATMENT] percent of the applicable
price specified in Section 4(c) [CONFIDENTIAL TREATMENT], (ii)
[CONFIDENTIAL TREATMENT] percent upon receipt by Licensee of a
[CONFIDENTIAL TREATMENT] and (iii) [CONFIDENTIAL TREATMENT] percent
[CONFIDENTIAL TREATMENT]; provided, however, that in the event it is
not possible for any reason to [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.
(e) Delivery and Acceptance. ORBCOMM shall transport the Ground
Segment Hardware to a major seaport or airport or such other location in the
Territory for delivery as the parties may mutually agree on (the
"Point-of-Entry"). The Licensee shall accept delivery of the Ground Segment
Hardware, and title to the Ground Segment Hardware delivered shall be deemed to
have passed upon unloading, at the Point-of-Entry. Licensee shall arrange for
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the import of the Ground Segment Hardware into the Territory and its
transportation to the installation sites. Licensee shall be responsible for
insuring, at its option and cost, the Ground Segment Hardware from and after
the time it receives title to the Ground Segment Hardware.
(f) Schedule. The schedule for delivery of the Ground Segment
Hardware and for its installation and acceptance testing by ORBCOMM shall be
established by ORBCOMM at the time the order is placed. Both parties hereto
acknowledge and agree that this will be a "best efforts" schedule only, and
that ORBCOMM shall not be held liable for damages caused by changes or delays
to this schedule.
(g) Warranty.
(i) Notwithstanding acceptance of delivery by
Licensee of the Ground Segment Hardware as provided in Section 4(e)
and subject to the warranty conditions in this Section 4(g), ORBCOMM
hereby warrants that, for a period of [CONFIDENTIAL TREATMENT] after
completion of the System Acceptance Test (the "Warranty Period"), the
Ground Segment Hardware shall be free from defects in material and
workmanship and shall operate and conform to the performance
capabilities, specifications, functions and other descriptions set
forth in the Acceptance 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. 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, and it shall determine where
the repair shall take place. 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 and is in lieu of
all other warranties, express or implied.
(ii) The warranty set forth herein shall not extend
to any 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, 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 or (E)
delivered to ORBCOMM not in conformance with the notice requirements
set forth herein.
(h) 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 this Section 4 that
it deems necessary if any applicable law in the Territory requires that (i)
ORBCOMM change the design of the Ground Segment Hardware or (ii) any elements
of the Ground Segment Hardware be procured in the Territory.
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SECTION 5 - OTHER SERVICES
Upon the written request of Licensee, ORBCOMM shall provide to Licensee Repeat
System Acceptance Services and On-Site Technical Assistance Services
(collectively, the "Other Services") described below:
(a) Repeat System Acceptance Services. Repeat System Acceptance
Services consist of providing ORBCOMM personnel or subcontractors at the
Licensee's facilities, after these facilities have been installed and tested,
to perform all tests necessary to ascertain that the Licensee System is still
meeting the requirements of the Acceptance Specifications. If minor
adjustments to the Licensee System are required to meet the acceptance criteria
described in the Acceptance Specifications, ORBCOMM shall cause such
adjustments to be made, provided that ORBCOMM shall not be required to make,
pursuant to this Section 5, repairs or modifications to the Licensee System
that it deems to be major repairs or modifications.
(b) On-Site Technical Assistance Services. On-Site Technical
Assistance Services consist of sending ORBCOMM personnel or subcontractors to
the Licensee's facilities to provide advice, assistance, training, retraining,
etc. to the Licensee's employees and customers. The number and technical
background of the personnel, and the amount of time they are to spend at
Licensee's facilities, are to be negotiated between ORBCOMM and Licensee.
(c) Consideration. In consideration of ORBCOMM providing to
Licensee the services specified above, Licensee agrees to pay the following
amounts to ORBCOMM:
(i) For each Repeat System Acceptance Service,
[CONFIDENTIAL TREATMENT], plus [CONFIDENTIAL TREATMENT] round trip
transportation costs for [CONFIDENTIAL TREATMENT] persons at
[CONFIDENTIAL TREATMENT] rates for travel of less than [CONFIDENTIAL
TREATMENT] hours duration or at the [CONFIDENTIAL TREATMENT] for
longer journeys; and
(ii) For each On-Site Technical Assistance Service,
[CONFIDENTIAL TREATMENT] per person per day, including [CONFIDENTIAL
TREATMENT] spent in the Territory, whether [CONFIDENTIAL TREATMENT]
days [CONFIDENTIAL TREATMENT], plus [CONFIDENTIAL TREATMENT] round
trip transportation costs at [CONFIDENTIAL TREATMENT] for travel of
less than [CONFIDENTIAL TREATMENT] hours duration or at the
[CONFIDENTIAL TREATMENT] for longer journeys.
The prices set forth above shall remain in effect for Other Services
provided on or before [CONFIDENTIAL TREATMENT].
(d) Payment Terms. [CONFIDENTIAL TREATMENT]. 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 6 - LICENSE FEES
(a) In recognition of the early date on which Licensee became a
Candidate Licensee for the Territory, [CONFIDENTIAL TREATMENT] license fee
calculated in accordance with Section 6(b) (the "License Fee") shall be due and
payable within [CONFIDENTIAL TREATMENT] business days of the occurrence of a
[CONFIDENTIAL TREATMENT] as defined in Section [CONFIDENTIAL TREATMENT]; and
provided further that if such a [CONFIDENTIAL TREATMENT] shall occur after the
[CONFIDENTIAL TREATMENT] of the [CONFIDENTIAL TREATMENT].
(b) The License Fee payable to ORBCOMM pursuant to Section 6(a)
shall be equal to [CONFIDENTIAL TREATMENT] percent of the [CONFIDENTIAL
TREATMENT] realized by [CONFIDENTIAL TREATMENT] in connection with divestitures
by [CONFIDENTIAL TREATMENT] of any equity securities of Licensee from the
Effective Date until the [CONFIDENTIAL TREATMENT] of the Effective Date. For
purposes of this Section 6(b), "cumulative gain" shall mean the amount by which
(i) the [CONFIDENTIAL TREATMENT] exceed (ii)(A) the [CONFIDENTIAL TREATMENT]
less (B) prior [CONFIDENTIAL TREATMENT] the whole pro rated to the portion of
equity sold.
(c) For purposes of this Agreement, a [CONFIDENTIAL TREATMENT]
with respect to Licensee shall be deemed to have occurred if [CONFIDENTIAL
TREATMENT], a [CONFIDENTIAL TREATMENT] (as defined below) and/or [CONFIDENTIAL
TREATMENT] cease to be or enter into an agreement or understanding pursuant to
which they will or may cease to be the beneficial owners of at least
[CONFIDENTIAL TREATMENT] percent of the voting power represented by Licensee's
outstanding securities. For purposes of this Section 6(c), a [CONFIDENTIAL
TREATMENT] shall be deemed to be any person that owns, directly or indirectly,
[CONFIDENTIAL TREATMENT] percent or more of the voting power represented by
outstanding securities of [CONFIDENTIAL TREATMENT] as of [CONFIDENTIAL
TREATMENT] or an Affiliate of such person.
SECTION 7 - SOFTWARE MAINTENANCE FEE
(a) Amount of Fee. Licensee shall pay to ORBCOMM an annual fee in
the amount of [CONFIDENTIAL TREATMENT] for the maintenance of the ORBCOMM
System Software as specified in Section 3(b)(vii) (the "ORBCOMM System Software
Maintenance Fee").
(b) Payment of Fee. ORBCOMM shall invoice Licensee for the full
amount of the annual ORBCOMM System Software Maintenance Fee [CONFIDENTIAL
TREATMENT] performed by ORBCOMM in connection with the purchase by Licensee of
an NCC, starting with the [CONFIDENTIAL TREATMENT] of such date. Licensee
shall pay such amount to ORBCOMM within [CONFIDENTIAL TREATMENT] days of
receipt of such invoice.
SECTION 8 - SATELLITE USAGE FEES
In addition to any other fees or payments specified herein, Licensee
shall pay to ORBCOMM a fee for the use of the Satellites (the "Satellite Usage
Fee") in accordance with the following terms and conditions:
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(a) Amount of Fee. (i) The Satellite Usage Fee for a
calendar month shall be equal to the greater of (A) [CONFIDENTIAL TREATMENT]
percent (the "Revenue Dependent Fee Percentage") of Licensee's gross operating
revenues for such month (the "Revenue Dependent Amount") and (B) the sum of (x)
the number of Subscriber Communicators registered on the Licensee System at any
time during such month multiplied by [CONFIDENTIAL TREATMENT] (the "Subscriber
Base Rate") and (y) the number of kbytes of data using such Subscriber
Communicators relayed through the Licensee's NCC (excluding bytes added to the
Subscriber's message by the ORBCOMM System) multiplied by US$[CONFIDENTIAL
TREATMENT] (the "Data Throughput Rate").
(ii) For purposes of this Agreement, in calculating the
Revenue Dependent Amount, gross operating revenues shall:
(A) be calculated using the amounts invoiced or
that could have been invoiced during a calendar month by Licensee,
whether these amounts are collected or not;
(B) include all revenue derived from the
provision by Licensee, either directly or indirectly, of the ORBCOMM
Services using the Licensee System;
(C) include all revenue derived from
[CONFIDENTIAL TREATMENT] and [CONFIDENTIAL TREATMENT] of the Licensee
System including all revenue derived as a Servicing Licensee;
(D) exclude all value-added or similar taxes or
assessments that Licensee is required by applicable law to collect
from its customers and remit to Governmental Authorities in the
Territory; and
(E) exclude the purchase price paid for
Subscriber Communicators.
(iii) ORBCOMM may, in its sole discretion, change the Revenue
Dependent Fee Percentage, the Subscriber Base Rate and/or the Data Throughput
Rate; provided that ORBCOMM shall not be entitled to make any such change (A)
before [CONFIDENTIAL TREATMENT], (B) more than [CONFIDENTIAL TREATMENT] time in
any [CONFIDENTIAL TREATMENT] period, provided that a change in any
[CONFIDENTIAL TREATMENT] of the Revenue Dependent Fee Percentage, Subscriber
Base Rate or the Data Throughput Rate shall for purposes of this Section be
[CONFIDENTIAL TREATMENT], (C) without giving Licensee [CONFIDENTIAL TREATMENT]
days advance written notice thereof. In addition:
(x) with respect to the Revenue Dependent Fee
Percentage, ORBCOMM shall not be entitled to make any change thereto
in an increment of more than [CONFIDENTIAL TREATMENT] percent at any
one time and the Revenue Dependent Fee Percentage shall not be more
than [CONFIDENTIAL TREATMENT] percent.
(y) with respect to the Subscriber Base Rate,
ORBCOMM shall not be entitled to make any change thereto in an
increment of more than [CONFIDENTIAL TREATMENT] percent of the then
existing rate at any one time and the Subscriber Base
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Rate shall not be more than [CONFIDENTIAL TREATMENT] per month per
Subscriber Communicator.
(z) with respect to the Data Throughput Rate,
ORBCOMM shall not be entitled to make any change thereto in an
increment of more than [CONFIDENTIAL TREATMENT] percent of the then
existing rate at any one time and the Data Throughput Rate shall not
be more than [CONFIDENTIAL TREATMENT] per kbyte.
(b) Payment of Fee. (i) Within [CONFIDENTIAL TREATMENT]
days of the end of each calendar month, Licensee shall advise ORBCOMM in
writing of Licensee's calculation of the total gross operating revenues for
such calendar month, in the currencies in which the Licensee invoices its
customers, the aggregate number of Subscriber Communicators registered on the
Licensee System at any time during such month and the number of kbytes of data
using such Subscriber Communicators relayed through the Licensee's NCC
(excluding bytes added to the Subscriber's message by the ORBCOMM System).
Within [CONFIDENTIAL TREATMENT] calendar days of the end of each calendar
month, ORBCOMM shall compute and invoice Licensee for the actual Satellite
Usage Fee payment for such month, in U.S. dollars, using the official exchange
rate in effect at Morgan Guaranty Trust Company of New York at the close of
business in New York on the last business day of such calendar month. In
calculating the amount owed by Licensee hereunder, ORBCOMM shall take into
account any credits owed to Licensee pursuant to Section 10(d) . In the event
that Licensee does not provide ORBCOMM with any of the foregoing information,
ORBCOMM may make its own estimate of the total gross operating revenues, which
estimate shall be binding on Licensee, and compute the amount to be invoiced
using such estimate.
(ii) Within [CONFIDENTIAL TREATMENT] of the receipt of the
Satellite Usage Fee invoice, Licensee shall pay the Satellite Usage Fee by
electronic fund transfer to the bank account specified by ORBCOMM. All
Satellite Usage Fees remaining unpaid after such [CONFIDENTIAL TREATMENT]
period shall bear interest until paid at the rate equal to one and one-half
times the prime rate or rates announced by Morgan Guaranty Trust Company of New
York during the period of nonpayment.
(iii) If payments due under this Section 8 cannot be made as
provided herein due to [CONFIDENTIAL TREATMENT] or other [CONFIDENTIAL
TREATMENT] in the Territory, ORBCOMM may permit Licensee [CONFIDENTIAL
TREATMENT].
SECTION 9 - BILLING SOFTWARE
To the fullest extent permitted by law, the parties to this Agreement
acknowledge and agree that it is critical that (i) in the universal
commissioning of new applications using the ORBCOMM System, Licensee and other
ORBCOMM System licensees have a billing system that can adequately and
appropriately bill Resellers and Subscribers for such applications and (ii)
Multinational Accounts be established. Accordingly, Licensee acknowledges that
it is essential that Licensee obtain a license from CSC Intelicom, Inc.
("CSC") for the billing software (the "Billing Software") Licensee will use for
ORBCOMM Services using the
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Licensee System. Licensee hereby agrees to use its best efforts to obtain a
license for the Billing Software and purchase certain hardware from CSC on
mutually agreeable terms and conditions. Notwithstanding the foregoing, ORBCOMM
and Licensee acknowledge that they currently intend to enter into a Billing
Services Agreement relating to the performance by ORBCOMM USA of certain
billing services on behalf of Licensee on mutually agreeable terms and
conditions. The parties agree that the responsibilities of Licensee under this
Section 9 with respect to the licensing of the Billing Software shall be
deferred until the earlier to occur of (a) the termination of the Ground
Segment Facilities Use Agreement (and the concurrent termination of the Billing
Services Agreement) and (b) the placement by Licensee of an order to purchase
the Ground Segment Hardware in accordance with Section 4(b).
SECTION 10 - MULTINATIONAL ACCOUNTS
(a) Definitions. The following terms shall have the
following meanings:
(i) A "Multinational Account" shall be defined as
an account pursuant to which a customer, who may be a reseller or
other intermediary or an end-user (a "Multinational Account
Customer"), accesses the ORBCOMM System, using some or all of its
Subscriber Communicators, in more than one territory; such Subscriber
Communicators may be permanently located in one specific territory, or
they may be located in two or more territories and roam between such
territories;
(ii) A "Contracting Licensee" shall be defined as
the ORBCOMM System licensee that has contracted with the Multinational
Account Customer to provide such Customer with ORBCOMM Services, which
Contracting Licensee shall be entitled to bill and collect from the
Multinational Account Customer for all ORBCOMM Services, whether
rendered in its territory or the territory of another ORBCOMM System
licensee; and
(iii) A "Servicing Licensee" shall be defined as an
ORBCOMM System licensee that is providing ORBCOMM Services in its
territory to a Multinational Account Customer of another ORBCOMM
System licensee. For purposes of this Section 10, ORBCOMM USA shall
be deemed an ORBCOMM System licensee.
(b) Contracting Licensee. Licensee shall be entitled to be
a Contracting Licensee, unless this right has been withdrawn by ORBCOMM in the
event of nonpayment of any amounts owed by the Contracting Licensee pursuant to
Section 10(d). As a Contracting Licensee, Licensee shall advise ORBCOMM
promptly (i) of the identification of Subscriber Communicators that may be used
in territories other than the Territory, and those other territories in which
they may be used and (ii) when a Multinational Account has been terminated.
Upon receipt of the notice specified in clause (i) above, ORBCOMM shall attempt
to make arrangements with the appropriate Servicing Licensee(s) so that service
may be provided in such other territory to the Multinational Account Customer's
Subscriber Communicators within [CONFIDENTIAL TREATMENT] days of receipt by
ORBCOMM of such notice. Upon receipt of the notice specified in clause (ii)
above, ORBCOMM shall attempt to
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terminate the service arrangements for such Multinational Account Customer made
with any Servicing Licensee; provided that, until the earlier to occur of the
termination of such service arrangements and [CONFIDENTIAL TREATMENT] days
after receipt by the Servicing Licensee of notice from ORBCOMM of the
termination of such Multinational Account, the Contracting Licensee shall be
responsible for billing and collecting payments for services provided to the
Multinational Account Customer. The Contracting Licensee agrees to register on
the Licensee System all Subscriber Communicators of any Multinational Account
Customer.
(c) Servicing Licensee. To the extent permitted by laws,
rules and regulations in the Territory, Licensee shall be required to act as a
Servicing Licensee for a Multinational Account Customer when requested to do so
by ORBCOMM. As a Servicing Licensee, Licensee shall (i) submit rated call
detail records to ORBCOMM for transmittal to the Contracting Licensee, for
activation on, access to and use of the Licensee System by a Multinational
Account Customer, at the same rates then being charged by Licensee to its
customers for similar services in the Territory, (ii) terminate a Multinational
Account Customer's access to and use of the Licensee System within
[CONFIDENTIAL TREATMENT] days of receipt of notice from ORBCOMM that such
Multinational Account has been terminated, and (iii) offer to Multinational
Account Customers customer assistance services comparable to the customer
assistance services Licensee provides to its customers other than those
services associated with billing and collection functions.
(d) Payments. Within [CONFIDENTIAL TREATMENT] days of the
end of each calendar month, a Servicing Licensee shall submit monthly invoices
to ORBCOMM, for transmittal to the Contracting Licensee, for activation on,
access to and use of the Licensee System by a Multinational Account Customer,
which invoices shall set forth the amount owed in the Servicing Licensee's
currency. Within [CONFIDENTIAL TREATMENT] days after the end of each calendar
month, ORBCOMM shall calculate and notify Licensee of the net amount in U.S.
Dollars, (using the official exchange rates in effect at Morgan Guaranty Trust
Company of New York at the close of business in New York on the last business
day of the applicable calendar month), due to or from Licensee for
Multinational Account services, which amount shall be calculated based on the
invoices ORBCOMM has received from any Servicing Licensee for the preceding
calendar month. In calculating amounts due hereunder, ORBCOMM shall be
entitled to add a surcharge to all amounts invoiced by a Servicing Licensee,
not exceeding [CONFIDENTIAL TREATMENT] percent of such invoiced amount, which
surcharge ORBCOMM shall be entitled to retain as payment for services rendered
by it pursuant to this Section 10.
In the event Licensee owes a net amount calculated in accordance with
the foregoing, Licensee shall pay to ORBCOMM such amount within [CONFIDENTIAL
TREATMENT] days of receipt of notice from ORBCOMM of such calculation. In the
event Licensee is owed a net amount calculated in accordance with the
foregoing, such net amount owed shall be offset first, against any amounts then
owing by Licensee as a Contracting Licensee or a Servicing Licensee and second,
against any Satellite Usage Fees then owed by Licensee to ORBCOMM, with the
balance payable by ORBCOMM to Licensee within [CONFIDENTIAL TREATMENT] days of
receipt by Licensee of such notice.
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SECTION 11 - PROPER OPERATION OF THE LICENSEE SYSTEM
(a) Performance of Tests. If, subsequent to the initial
System Acceptance Test, in ORBCOMM's reasonable opinion, there are grounds to
believe that the Licensee System is not operating in accordance with the
Acceptance Specifications, ORBCOMM shall be entitled, at its option, (i) to
require Licensee to perform a System Acceptance Test, (ii) to have such a test
performed by purchasing a Repeat Systems Acceptance Service as described in
Section 5(a) or (iii) to perform a System Acceptance Test itself. If ORBCOMM
elects to require Licensee to take the action specified in either (i) or (ii)
above, ORBCOMM shall advise Licensee in writing of such election and Licensee
must perform, or have performed, the test within ten days thereafter. If
ORBCOMM elects to perform the System Acceptance Test itself, ORBCOMM shall
advise Licensee in writing of such election and Licensee shall provide ORBCOMM
and its representatives access to Licensee's facilities, including its
equipment. The cost to perform the System Acceptance Test shall be borne
solely by Licensee unless, after completion of such test, ORBCOMM reasonably
concludes that the Licensee System is operating in accordance with the
Acceptance Test, in which case the cost thereof shall be borne by ORBCOMM.
(b) Corrective Action. If ORBCOMM determines from the
System Acceptance Test that the Licensee System is not operating in accordance
with the Acceptance Specifications, ORBCOMM shall be entitled to require
Licensee immediately to cease operation of the Licensee System until ORBCOMM
determines that all necessary corrections have been made by Licensee. In the
event such corrections are not made within three months of receipt by Licensee
of written notice thereof, ORBCOMM shall be entitled to terminate this
Agreement.
SECTION 12 - TERM OF AGREEMENT
(a) Term. Subject to the provisions set forth in Section
11 and this Section 12, this Agreement shall have a term of ten years,
commencing on the Effective Date. Within one year prior to the expiration of
the initial term of this Agreement, Licensee may request that this Agreement be
extended for a further period of up to ten years, which request shall not be
unreasonably denied by ORBCOMM. To the extent such extension is granted,
ORBCOMM shall not charge Licensee a license fee in any form for such extension.
(b) Termination.
(i) Termination by Licensee. Subject to the provisions of
Section 15, this Agreement may be terminated by Licensee one year after
providing to ORBCOMM written notice of termination. In addition, this
Agreement may be terminated by Licensee at any time after the occurrence of any
of the following events:
(A) Any representation or warranty made by
ORBCOMM in this Agreement or any other document delivered pursuant to
this Agreement shall be false or misleading in any material respect;
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(B) ORBCOMM shall fail to observe or perform any
of its obligations under this Agreement, and such failure shall remain
uncured for a period of [CONFIDENTIAL TREATMENT] days after receipt by
ORBCOMM of written notice thereof; or
(C) ORBCOMM shall become insolvent, admit in
writing its inability to pay its debts as they become due, make a
general assignment for the benefit of creditors, suffer or permit the
appointment of a receiver for its business or assets, initiate or
become subject to any proceeding under any bankruptcy or insolvency
law, whether domestic or foreign, or liquidate or wind up, voluntarily
or otherwise.
(ii) Termination by ORBCOMM. This Agreement may be
terminated by ORBCOMM at any time after the occurrence of any of the following
events (a "Licensee Event of Default"):
(A) Licensee shall fail to pay any amount due
under this Agreement, including the Satellite Usage Fee, within
[CONFIDENTIAL TREATMENT] days after receipt of notice from ORBCOMM
that such amount is due;
(B) Any representation or warranty made by
Licensee in this Agreement or any other document delivered pursuant to
this Agreement shall be false or misleading in any material respect;
(C) Licensee shall fail to observe or perform any
of its obligations under Section 11(b);
(D) Licensee shall fail to observe or perform any
of its obligations under this Agreement (other than breaches specified
in Sections 12(b)(ii)(A), (C), (J) or (L)), and such failure shall
remain uncured for a period of [CONFIDENTIAL TREATMENT] days after
receipt by Licensee of written notice thereof;
(E) Licensee shall become insolvent, admit in
writing its inability to pay its debts as they become due, make a
general assignment for the benefit of creditors, suffer or permit the
appointment of a receiver for its business or assets, initiate or
become subject to any proceeding under any bankruptcy or insolvency
law, whether domestic or foreign, or liquidate or wind up, voluntarily
or otherwise;
(F) Currency exchange restrictions that prevent
Licensee from making its payments to ORBCOMM in U.S. dollars shall be
imposed by any Governmental Authority in the Territory and continue in
effect for more than two years;
(G) Any law shall be enacted or exist in any part
of the Territory that significantly hinders normal operation of the
Licensee System or imposes any tax or other assessment on the
Satellite Usage Fee that is not borne solely by Licensee;
(H) Any law shall be enacted in any part of the
United States that, in ORBCOMM's reasonable opinion, significantly
hinders normal operation of the
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ORBCOMM System or prohibits receipt by ORBCOMM of any fees or amounts
due to ORBCOMM hereunder;
(I) Licensee shall take any action or fail to
take any action that results in Licensee or ORBCOMM contravening or
violating any law in effect in any part of the Territory, in any other
territory in which Subscriber Communicators served by Licensee are
located or in the United States;
(J) Licensee shall violate the provisions of
Section 15(a);
(K) Total Satellite Usage Fees in any calendar
year after the first full calendar year after the date [CONFIDENTIAL
TREATMENT], shall be less than [CONFIDENTIAL TREATMENT] percent of the
total Satellite Usage Fees for the previous year; provided that for
the purposes of this Section 12(b)(ii)(K) only, in calculating the
amounts of the Satellite Usage Fees a constant set of currency
exchange rates shall be used; and provided further that this
percentage shall be [CONFIDENTIAL TREATMENT], if the average number of
[CONFIDENTIAL TREATMENT] on [CONFIDENTIAL TREATMENT] of the relevant
year is [CONFIDENTIAL TREATMENT] than the number of [CONFIDENTIAL
TREATMENT] on [CONFIDENTIAL TREATMENT] of the previous year, in
accordance with the following formula: [CONFIDENTIAL TREATMENT]
(number of [CONFIDENTIAL TREATMENT] on [CONFIDENTIAL TREATMENT] of the
[CONFIDENTIAL TREATMENT] year/number of [CONFIDENTIAL TREATMENT] on
[CONFIDENTIAL TREATMENT] of the [CONFIDENTIAL TREATMENT] year);
(L) By [CONFIDENTIAL TREATMENT] after the System
Available Date, Licensee shall not have obtained, or shall thereafter
fail to maintain, the Permits required to operate the Licensee System
in Canada;
(M) An ORBCOMM Canada Event of Default shall have
occurred under the Ground Segment Facilities Use Agreement; or
(N) An event of default by Licensee shall have
occurred and remain uncured or not waived under the Software License
Agreement.
(c) Remedies on Termination. (i) Upon termination of this
Agreement by Licensee for convenience pursuant to Section 12(b)(i) or by
ORBCOMM as a result of a Licensee Event of Default, to the fullest extent
permitted by law, ORBCOMM shall be entitled to, in its sole discretion, take
over the operation of the Licensee System and manage it after termination of
this Agreement to ensure that there is as little interruption as possible in
the provision of ORBCOMM Services in the Territory. Licensee agrees to
cooperate in a commercially reasonable manner and actively participate,
including with respect to the transfer of the Permits in the Territory and
providing ORBCOMM information on its Resellers, in ensuring continued
operations until such time that a new entity has been granted a license for the
Territory and is ready to start operations.
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(ii) Subject to Section 17, termination of this Agreement 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) Abandonment of ORBCOMM System. Nothing contained in
this Agreement shall prevent the ORBCOMM Entities from ceasing to develop,
construct or operate the ORBCOMM System. In the event ORBCOMM or its
Affiliates (including any of the ORBCOMM Entities) abandon the ORBCOMM System
by ceasing to develop, construct and operate all of the ORBCOMM System, ORBCOMM
shall be entitled to terminate this Agreement by giving Licensee 90 days
written notice, provided that Licensee shall have the right, together with all
other persons who may have a similar right, to purchase the tangible assets of
the ORBCOMM System owned by ORBCOMM Global at their then fair market value,
which right shall be exercised by Licensee within three months of receipt of
written notice from ORBCOMM of abandonment.
(e) Use of ORBCOMM System After Termination or Expiration.
On the effective date of termination or expiration of this Agreement, Licensee
shall cease using the ORBCOMM System, the ORBCOMM System Software and the
ORBCOMM operating methods, logos, trademarks, service marks and name, and shall
return all manuals and related materials to ORBCOMM
(f) Obligations After Termination. The obligations set
forth in Sections 3(a)(vi), 14(a)(ii), 14(b)(ii), 15, 17, 18 and 20(d), (j) and
(n) and those obligations that relate to any amounts due and owing for any
periods prior to termination or expiration of this Agreement shall survive such
termination or expiration.
SECTION 13 - CHANGE OF CONTROL
In the event a change in control as defined in Section 6(b)(ii) occurs
with respect to the Licensee, this Agreement shall be void and of no further
force and effect unless ORBCOMM consents in writing to an assignment of this
Agreement, which consent shall not be unreasonably withheld.
SECTION 14 - REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Licensee. (i)
Licensee represents and warrants to ORBCOMM that (A) Licensee is a corporation
duly organized and validly existing under the laws of Canada, (B) Teleglobe
Inc. owns 100% of the issued and outstanding common stock of Licensee and no
other capital stock of the Licensee is outstanding, (C) Licensee has the power,
corporate or otherwise, to enter into this Agreement and perform its
obligations hereunder and the execution, delivery and performance of this
Agreement by Licensee has been duly authorized by all necessary action on the
part of Licensee, (D) this Agreement has been duly executed and delivered by
Licensee and constitutes a legally valid and binding obligation of Licensee,
enforceable against Licensee in accordance with its terms,
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(E) Licensee's operation of the Licensee System will 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 effect in or applicable to the Territory, and (F) Licensee's operation of
the Licensee System will not contravene any Canadian, provincial, federal,
state, local or foreign rules, regulations, laws or treaties.
(ii) Licensee agrees to indemnify and hold harmless ORBCOMM
and its Affiliates, officers, directors, employees, agents and representatives,
including any of the other ORBCOMM Entities, against all claims, demands or
liabilities (including reasonable attorneys' fees) of third parties arising out
of or in connection with Licensee's misuse of the ORBCOMM logos, trademarks
and service marks or any other intellectual property rights of ORBCOMM or any
third parties incorporated into the ORBCOMM System, or Licensee's breach of any
representations, warranties, covenants or agreements contained herein. This
indemnification obligation shall survive the expiration or termination of this
Agreement.
(b) Representations and Warranties of ORBCOMM. (i)
ORBCOMM represents and warrants to Licensee that (A) ORBCOMM is a limited
partnership duly formed and validly existing under the laws of the State of
Delaware, (B) ORBCOMM has the partnership power to enter into this Agreement
and perform its obligations hereunder and the execution, delivery and
performance of this Agreement by ORBCOMM has been duly authorized by all
necessary action on the part of ORBCOMM, (C) this Agreement has been duly
executed and delivered by ORBCOMM and constitutes a legally valid and binding
obligation of ORBCOMM, enforceable against ORBCOMM in accordance with its
terms, (D) the ORBCOMM Entities' operation of the ORBCOMM System will not
violate any United States copyright, trade secret, trademark or patent rights
of any third party, and (F) the ORBCOMM Entities' use of the ORBCOMM System
will not contravene any United States federal, state or local rules,
regulations, laws or treaties, including, but not limited, to licensing
requirements.
(ii) ORBCOMM agrees to indemnify and hold harmless Licensee
and its Affiliates, officers, directors, employees, agents and representatives
against all claims, demands or liabilities (including reasonable attorneys'
fees) of third parties arising out of or in connection with ORBCOMM's breach of
any representations, warranties, covenants or agreements contained herein.
This indemnification obligation shall survive the expiration or termination of
this Agreement.
SECTION 15 - NON-COMPETITION
(a) During Term. As long as this Agreement is in effect,
Licensee hereby agrees that neither it nor its shareholders shall engage or
participate in, assist or have an interest in, directly or indirectly, the
operation, management or conduct of any business or enterprise that provides or
intends to provide satellite-based, two-way data communications or position
determination services using radio frequencies below 1 GHz for communications
directly between satellite(s) and subscriber communicators.
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(b) After Term. In the event Licensee terminates this
Agreement in accordance with Section 12(b)(i) for its convenience, or if
ORBCOMM terminates this Agreement because of the occurrence of a Licensee Event
of Default, Licensee hereby agrees that, for a period of two years from the
date of such termination, neither it nor any of its shareholders that own, at
the time of the termination of this Agreement, at least 10% of Licensee's
securities entitled to vote generally in the election of directors or persons
who hold similar positions shall engage or participate in, assist or have an
interest in, directly or indirectly, the operation, management or conduct of
any business or enterprise, other than the Licensee System, that provides or
intends to provide satellite-based, two-way data communications or position
determination services using radio frequencies below 1 GHz for communications
directly between satellite(s) and subscriber communicators.
SECTION 16 - SYSTEM OUTAGES AND FAILURE
(a) In the event ORBCOMM is unable to provide Licensee with
access to the ORBCOMM System due to temporary or intermittent problems (not
including planned periods of satellite unavailability that result from the
system architecture) with the ORBCOMM System caused by any of the ORBCOMM
Entities (an "Intermittent Service Problem") for a total of more than ten full
days during any one year period commencing on the later to occur of the System
Available Date and the date the Licensee System commenced operations and any
anniversary of such date, Licensee's sole and exclusive remedy shall be to
extend the term of this Agreement [CONFIDENTIAL TREATMENT] day for each day or
part of a day in excess of such ten full days that ORBCOMM is unable to provide
Licensee with access to the ORBCOMM System; provided, however that if the
ORBCOMM System has Intermittent Service Problems aggregating 180 full days in
each of three consecutive years, Licensee shall be entitled to terminate this
Agreement upon written notice to ORBCOMM.
(b) If ORBCOMM determines in its sole discretion that the
ORBCOMM System has permanently and irrevocably failed such that Licensee cannot
access the ORBCOMM System, ORBCOMM shall be entitled to terminate this
Agreement as described in Section 12(d).
SECTION 17 - DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
(a) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED
IN SECTION 4(g) OR SECTION 14(b), TO THE FULLEST EXTENT PERMITTED BY LAW, NONE
OF THE ORBCOMM ENTITIES HAVE MADE AND NONE OF THEM SHALL BE DEEMED TO HAVE MADE
ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM
SYSTEM, THE GROUND SEGMENT HARDWARE, THE RELATED SERVICES, THE OTHER SERVICES
OR ANY SERVICES AND/OR PRODUCTS TO BE PROVIDED UNDER THIS AGREEMENT. TO THE
FULLEST EXTENT PERMITTED BY LAW, EACH OF THE ORBCOMM ENTITIES EXPRESSLY
DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL
OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EACH OF THE ORBCOMM ENTITIES,
EXPRESS OR IMPLIED, ARISING BY LAW OR
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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 ORBCOMM SYSTEM, THE GROUND SEGMENT HARDWARE, THE RELATED SERVICES, THE
OTHER SERVICES OR ANY SERVICES AND/OR PRODUCTS PROVIDED BY OR THROUGH ANY OF
THE ORBCOMM ENTITIES UNDER THIS AGREEMENT; (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 AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ANY OF THE ORBCOMM ENTITIES.
(b) Limitation of Liability. (i) Each of the parties
acknowledges and understands that the ORBCOMM System is a new, untested system
that entails a high degree of risk of (A) delay in or cancellation of
deployment and (B) launch vehicle, satellite and other equipment or software
failure or impaired performance, and that there can be no assurance that the
ORBCOMM System will be an economically viable system even if successfully
deployed. Each party shall bear all responsibility, risk and cost associated
with developing and maintaining its respective business, and none of the
ORBCOMM Entities shall be liable to Licensee for costs or damages caused by any
schedule delays or failure of the ORBCOMM System or any component thereof,
except as specifically provided in Section 16.
(ii) Licensee acknowledges that ORBCOMM shall supply the
service that is the subject of this Agreement on a good faith efforts basis and
that service failures and interruptions may occur and are difficult to assess
as to cause or resulting damages. In such event and except as otherwise
provided in Section 16, the parties agree that the ORBCOMM Entities shall not
be liable to Licensee for any losses or damages arising out of any failure of
performance, error, omission, interruption, deletion, defect, delay in
operation or transmission, communications line failure, theft or destruction or
behavior, negligence, or under any other cause of action.
(iii) 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 AGREEMENT FOR LOSS OF USE, REVENUE OR
PROFIT OR FOR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. In
addition, in no event shall any liability of ORBCOMM or any of the other
ORBCOMM Entities exceed an amount equal to [CONFIDENTIAL TREATMENT],
[CONFIDENTIAL TREATMENT] and [CONFIDENTIAL TREATMENT] provided hereunder.
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SECTION 18 - DISPUTE RESOLUTION
(a) Subject to the provisions of Section 20(n), in the
event of a dispute regarding any matter covered by this Agreement, ORBCOMM and
Licensee shall use all reasonable efforts to resolve such dispute within 60
calendar days of receipt by either party of notice of the existence of any such
dispute. In the event the parties are unable to agree on the resolution of
such dispute within such period of time, either party may remove the dispute
for settlement by final and binding arbitration in New York, NY, in accordance
with the then existing United States domestic rules of the American Arbitration
Association ("AAA") (to the extent not modified by this Section). In the event
that more than one dispute arises under this Agreement, 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 shall be an expert in the
satellite communications business. 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 dispute 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
Agreement equal to the period during which Licensee was denied access to the
ORBCOMM System.
(c) Except with respect to the application of Section 20(n)
hereof, the rights of the parties under this Section 18 shall be the exclusive
remedy with respect to any dispute regarding any matter covered by this
Agreement.
SECTION 19 - COMPLIANCE WITH LAWS
The Licensee shall comply in all material respects with all applicable
laws, rules and regulations of any Governmental Authority in the performance of
its obligations hereunder. In particular, any export of ORBCOMM hardware,
software and data shall comply with applicable U.S. export control
requirements. Licensee agrees to comply with all applicable laws of the United
States regarding export controls and foreign corrupt practices. Summaries
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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 K.
SECTION 20 - MISCELLANEOUS
(a) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon receipt if
delivered personally or by facsimile (answer back received), one (1) business
day after being sent by express or courier mail, or three (3) business days
after being sent 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):
ORBCOMM:
ORBCOMM International Partners, L.P.
21700 Atlantic Boulevard
Dulles, VA 20166, USA.
Telecopy: (703) 406-3508
Attention: President
Licensee:
ORBCOMM Canada Inc.
1000, rue de la Gauchetiere ouest
Montreal, Quebec
Canada H3B 4X5
Telecopy: (514) 868-8080
Attention: President
(b) Successors and Assigns. This Agreement shall be
binding upon the parties, their successors and permitted assigns. Subject to
Section 13, neither this Agreement nor any interests or duties of Licensee
hereunder may be assigned (by operation of law or otherwise) by Licensee
without the express written consent of ORBCOMM, which consent shall not be
unreasonably withheld.
(c) Entire Agreement. This Agreement and all attachments
(which are hereby made part of this Agreement) 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 Agreement must be in writing and signed by
both parties.
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(d) Governing Law and Jurisdiction. (i) 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. The United Nations
Convention on Contracts for the International Sale of Goods (1980) shall not
apply to any provisions of this Agreement. Neither party may bring any action
for a claim under this Agreement later than one year after the termination of
this Agreement; provided that claims under any provision of this Agreement that
survives termination of this Agreement 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 20(n), 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 Agreement 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
Agreement 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 registered or certified mail, return receipt requested, at the
address specified in or pursuant to Section 20(a) 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.
(e) 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 Agreement 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 dispute and resolved in
accordance with Section 18.
(f) 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 Agreement 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.
(g) Severability. If any part of this Agreement shall be
held unenforceable, the remainder of this Agreement will nevertheless remain in
full force and effect.
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(h) 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.
(i) 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 Agreement shall
be construed as granting either party the right or authority to act as a
representative, agent, employee or joint venturer of the other.
(j) Non-Disclosure. Each of the parties to this Agreement
acknowledge the execution of the Mutual Non-Disclosure Agreement dated as of
December 19, 1995 and each agrees to observe the provisions thereof.
(k) Communication in English. 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 Agreement shall be in the English
language or accompanied by an accurate and complete translation into English.
(l) Calendar. The Gregorian calendar shall be used in
calculating, invoicing and paying all amounts due under this Agreement.
(m) 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 reserves 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 acceptable to
ORBCOMM.
(n) Equitable Relief. Each of the parties acknowledges
that the ORBCOMM System and the ORBCOMM Services provided pursuant to this
Agreement are unique and recognizes and affirms that in the event of any breach
of this Agreement 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.
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IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed as of the day and year first above written.
ORBCOMM INTERNATIONAL PARTNERS, L.P.
By:
------------------------------
Name: Alan L. Parker
Title: President
ORBCOMM CANADA INC.
By:
-------------------------------
Name:
-------------
Title:
---------------
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