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EXHIBIT 10.14
GROUND SEGMENT FACILITIES USE AGREEMENT
This Ground Segment Facilities Use Agreement ("Agreement") is entered
into this 19th day of December 1995 between ORBCOMM International Partners,
L.P., a Delaware limited partnership ("ORBCOMM"), and ORBCOMM Canada Inc., a
corporation formed under the laws of Canada ("ORBCOMM Canada").
W I T N E S S E T H
WHEREAS, ORBCOMM Global, L.P., a Delaware limited partnership
("ORBCOMM Global"), has generally completed construction of the United States
Network Control Center (the "US NCC") and the United States Gateway Earth
Stations (the "US GESs" and together with the US NCC, the "US Ground Segment
Hardware") for use with the satellite-based, low-Earth orbit message and data
communications and position determination system (the "ORBCOMM System");
WHEREAS, ORBCOMM Global has granted to Orbital Communications
Corporation ("OCC"), subject to the rights granted to ORBCOMM USA described
below, the exclusive right in the United States to use, among other things, the
US Ground Segment Hardware;
WHEREAS, OCC has granted to ORBCOMM USA, L.P. ("ORBCOMM USA") the
exclusive use of, among other things, the US Ground Segment Hardware and
authorized ORBCOMM USA to grant to ORBCOMM use of the US Ground Segment
Hardware for purposes of operating the ORBCOMM System in, inter alia, Canada;
WHEREAS, ORBCOMM USA has authorized ORBCOMM to permit the use of the
US Ground Segment Hardware by the ORBCOMM System Canadian service licensee; and
WHEREAS, ORBCOMM Canada is concurrently entering into a Service
License Agreement with ORBCOMM (the "Service License Agreement") pursuant to
which ORBCOMM has authorized ORBCOMM Canada to, among other things, access and
use certain assets of the ORBCOMM System for the purpose of providing ORBCOMM
Products and Services in the Territory (as such terms are defined therein).
NOW THEREFORE, in consideration of the foregoing premises, the
agreements and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
SECTION 1 - DEFINITIONS
Terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Service License Agreement.
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[CONFIDENTIAL TREATMENT] means that certain confidential information
has been deleted from this document and filed separately with the Securities
and Exchange Commission.
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SECTION 2 - USE OF THE US GROUND SEGMENT HARDWARE
Subject to the terms and conditions set forth herein, ORBCOMM hereby
authorizes ORBCOMM Canada to access and use the US Ground Segment Hardware on a
shared basis with ORBCOMM USA and such other service license providers as
ORBCOMM may designate from time to time. Subject to Section 6, access and use
of the US Ground Segment Hardware is provided by ORBCOMM on a best efforts
basis.
SECTION 3 - TERM OF AGREEMENT
Section 3.1 - Term. Except as otherwise provided herein, this
Agreement shall have a term of ten (10) years commencing on the date hereof.
Section 3.2 - Termination by ORBCOMM Canada. (a) ORBCOMM Canada shall
be entitled to terminate this Agreement by giving ORBCOMM [CONFIDENTIAL
TREATMENT] weeks prior written notice of termination.
(b) (i) ORBCOMM Canada shall be entitled to terminate the
licensing to it of the US NCC, and only in connection therewith, to terminate
the licensing of access to any of the US GESs, by giving ORBCOMM [CONFIDENTIAL
TREATMENT] weeks prior written notice of termination. In such event, the Ground
Segment Hardware Usage Fee shall be reduced in accordance with Section 5.
(ii) If the licensing of the US NCC is terminated and ORBCOMM Canada
desires to continue to license access to any of the US GESs, except as
otherwise specified in Section 4.2(c), ORBCOMM Canada shall be responsible in
all respects for installing or otherwise arranging for the communications links
between the Canadian NCC and the US GESs that it wishes to continue to use.
Section 3.3 - Termination by ORBCOMM. ORBCOMM shall be entitled to
terminate this Agreement as provided in Section 3.4 upon the occurrence of any
of the following events (an "ORBCOMM Canada Event of Default"):
(a) A Licensee Event of Default shall have occurred under
the Service License Agreement and ORBCOMM shall have terminated the Service
License Agreement as a result thereof;
(b) ORBCOMM Canada shall fail to observe or perform any
of its obligations under Section 4.1 or fail to pay any amount due under
Section 5, and such failure shall remain uncured for a period of CONFIDENTIAL
TREATMENT days after receipt by ORBCOMM Canada of written notice thereof; and
(c) ORBCOMM shall have determined in its sole discretion
that ORBCOMM Canada's use of the US Ground Segment Hardware has become, or is
expected to become within
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one year of such determination, detrimental to the operation of either the
ORBCOMM USA or the ORBCOMM Canada ORBCOMM network.
Section 3.4 - Conditions of Termination by ORBCOMM. Upon the
occurrence of any of the events specified in Section 3.3(a) or (b), ORBCOMM
shall be entitled to terminate this Agreement immediately. Upon the occurrence
of the event specified in Section 3.3(c), ORBCOMM shall be entitled to
terminate this Agreement on CONFIDENTIAL TREATMENT months prior written notice.
SECTION 4 - OBLIGATIONS OF PARTIES
Section 4.1 - Obligations of ORBCOMM Canada. ORBCOMM Canada shall:
(a) Obtain and at all times maintain, at its sole
expense, all Permits from any applicable Governmental Authority necessary to
use the US Ground Segment Hardware;
(b) As and when it may become necessary in ORBCOMM's sole
judgment to provide ORBCOMM Services in Canada using the US Ground Segment
Hardware, procure, install, maintain and operate in the Territory the hardware
and software that comprise a Hewlett Packard Message Transfer Agent (the
"Message Transfer Agent") and a Message Store, and a router that is capable of
interfacing with the CISCO router that ORBCOMM is obligated to install in the
US NCC pursuant to Section 4.2(c);
(c) Provide a dedicated duplex communications link
between the Message Transfer Agent and the US NCC that has sufficient capacity
for the traffic it is expected to carry; and
(d) Provide documentation to ORBCOMM in a format and on a
schedule the parties mutually agree on that contains the information regarding
new and terminated Subscribers necessary for ORBCOMM to perform its obligations
pursuant to Section 4.2(d).
(e) Pay all Canadian, provincial, federal, state, local
and other taxes (other than taxes based on ORBCOMM's net income), 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.
Section 4.2 - Obligations of ORBCOMM. ORBCOMM shall:
(a) Monitor the US Ground Segment Hardware during passes
of the Satellites over the Territory;
(b) Subject to Section 6, use all commercially reasonable
efforts to maintain the US Ground Segment Hardware;
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(c) Provide a CISCO router in the United States NCC that
is capable of communicating with the Message Transfer Agent and the Message
Store;
(d) In the event ORBCOMM does not provide customer
billing services to ORBCOMM Canada, provide documentation to ORBCOMM Canada in
a format and on a schedule the parties mutually agree on containing the call
detail records for Subscribers from which ORBCOMM Canada can generate bills and
respond to Subscriber inquires using the Billing System; and
SECTION 5 - CONSIDERATION FOR USE OF US GROUND SEGMENT HARDWARE
Section 5.1 - Ground Segment Hardware Usage Fee. In consideration for
the use by ORBCOMM Canada of the US Ground Segment Hardware, ORBCOMM Canada
agrees to pay to ORBCOMM [CONFIDENTIAL TREATMENT] of [CONFIDENTIAL TREATMENT]
in a calendar month (the "Ground Segment Hardware Usage Fee"); provided however,
that if ORBCOMM Canada exercises the right to partially terminate this
Agreement in accordance with Section 3.2(b), the percentage of [CONFIDENTIAL
TREATMENT] used to calculate the Ground Segment Hardware Usage Fee shall be
reduced from [CONFIDENTIAL TREATMENT]% to [CONFIDENTIAL TREATMENT]% if ORBCOMM
Canada continues to license access to [CONFIDENTIAL TREATMENT] or to
[CONFIDENTIAL TREATMENT]% if ORBCOMM Canada continues to license access to only
[CONFIDENTIAL TREATMENT].
Section 5.2 - Payment Terms. The Ground Segment Hardware Usage Fee
shall be paid by ORBCOMM Canada to ORBCOMM at the same time the Satellite Usage
Fee is paid by ORBCOMM Canada to ORBCOMM under the Service License Agreement,
as such time may be modified from time to time.
SECTION 6 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES
Section 6.1 - Disclaimer of Warranties. TO THE FULLEST EXTENT
PERMITTED BY LAW, ORBCOMM SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATIONS
OR WARRANTIES WHATSOEVER WITH RESPECT TO THE US GROUND SEGMENT HARDWARE. TO
THE FULLEST EXTENT PERMITTED BY LAW, ORBCOMM EXPRESSLY DISCLAIMS, AND ORBCOMM
CANADA HEREBY EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS AND LIABILITIES OF ORBCOMM, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO, INCLUDING, BUT NOT LIMITED TO, (i) ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE
OF TRADE; (iii) ANY WARRANTIES AS TO THE ACCURACY OR AVAILABILITY OF THE US
GROUND SEGMENT HARDWARE; (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
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LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT
CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM.
Section 6.2 - Limitation of Liability. (a) Each of the parties
acknowledges and understands that the US Ground Segment Hardware is new and
untested equipment that entails a high degree of risk of equipment or software
failure or impaired performance. Each party shall bear all responsibility,
risk and cost associated with developing and maintaining its respective
business, and ORBCOMM shall not be liable to ORBCOMM Canada for costs or
damages caused by any failure of the US Ground Segment Hardware System or any
component thereof.
(b) ORBCOMM Canada acknowledges that ORBCOMM shall provide use of
the US Ground Segment Hardware 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, the parties agree that ORBCOMM shall not be
liable to ORBCOMM Canada 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.
(c) 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 DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. In addition, in no
event shall any liability of ORBCOMM exceed an amount equal to CONFIDENTIAL
TREATMENT paid for a calendar month.
SECTION 7 - MISCELLANEOUS
Section 7.1 - Disputes. Disputes under this Agreement shall be
resolved in accordance with the provisions of Section 18 of the Service License
Agreement.
Section 7.2 - Export Control Restrictions. Any export of software and
data shall comply with applicable U.S. export control requirements. ORBCOMM
Canada agrees to comply with all applicable laws of the United States regarding
export controls and prohibited foreign trade practices. Summaries of the
current provisions of the United States Federal International Traffic in Arms
Regulations and of the Prohibited Foreign Trade Practices Act are set forth in
Attachment A.
Section 7.3 - Notices. All notices given under this Agreement shall
be given in accordance with Section 20(a) of the Service License Agreement.
Section 7.4 - Successors and Assigns. This Agreement shall be binding
upon the parties, their successors and permitted assigns. In the event the
Service License Agreement is assigned by ORBCOMM Canada to a third party in
accordance with the terms and conditions set forth therein, this Agreement
shall be automatically assigned to such third party. Except as specified
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in the preceding sentence, neither this Agreement nor any interests or duties
of ORBCOMM Canada hereunder may be assigned (by operation of law or otherwise)
by ORBCOMM Canada.
Section 7.5 - Entire Agreement. This Agreement and all attachments
(which are hereby made part of this Agreement) contain the entire understanding
between ORBCOMM Canada 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.
Section 7.6 - Governing Law and Jurisdiction. 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.
Section 7.7 - 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 7.1.
Section 7.8 - Waiver. It is understood and agreed that no failure or
delay by either ORBCOMM or ORBCOMM Canada 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.
Section 7.9 - Severability. If any part of this Agreement shall be
held unenforceable, the remainder of this Agreement will nevertheless remain in
full force and effect.
Section 7.10 - 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.
Section 7.11 - Independent Contractors. ORBCOMM Canada 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
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party the right or authority to act as a representative, agent, employee or
joint venturer of the other.
Section 7.12 - Communication in English. The parties agree that all
communications, notices or any written material to be provided by ORBCOMM to
ORBCOMM Canada or by ORBCOMM Canada to ORBCOMM under this Agreement shall be in
the English language or accompanied by an accurate and complete translation
into English.
Section 7.13 - Calendar. The Gregorian calendar shall be used in
calculating, invoicing and paying all amounts due under this Agreement.
Section 7.14 - 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
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:
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Name: Alan L. Parker
Title: President
ORBCOMM CANADA INC.
By:
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Name:
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Title:
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