1
EXHIBIT 10.28
DATA LICENCE AND DISTRIBUTION AGREEMENT
Between:
RADARSAT INTERNATIONAL INC.,
a company incorporated under the laws of Canada
having its head office in Vancouver,
British Columbia, Canada
(hereinafter called "RSI")
OF THE FIRST PART
ORBIMAGE
company incorporated under the laws of U.S.A
having its head office in Dulles, Virginia,
U.S.A.
(hereinafter called "the Distributor")
OF THE SECOND PART
WHEREAS Canadian Space Agency ("CSA") put into polar orbit a remote sensing
satellite using synthetic aperture radar technology;
AND WHEREAS pursuant to and subject to the terms of a Master Licence
Agreement between RSI and the Canadian Space Agency and Her Majesty the Queen as
represented by Natural Resources Canada, RSI has, subject to the reservations
set out therein, received an exclusive, unrestricted, worldwide licence,
including the right to sublicence, distribute and market worldwide, RADARSAT-1
Data and Data Products to be Commercially Distributed in any form, on any media
and for any computer environment;
AND WHEREAS RSI has agreed to distribute and market RADARSAT-1 Data and
Data Products in a manner consistent with United Nations Resolution A/41/65 of
December 3, 1986 on "The Principles Relating to Remote Sensing of the Earth from
Space";
AND WHEREAS the Distributor wishes to obtain a sublicence for the
distribution of RADARSAT-1 Data and Data Products in the Territory;
NOW THEREFORE the parties agree as follows:
Page 1
2
ARTICLE 1 - INTERPRETATION
In this Agreement, the following terms shall have the meanings set forth below:
1.1.1 "Agreement" means this Agreement as well as all schedules annexed
hereto which shall form part of this Agreement.
1.1.2 "Catalog" means all reference information of RADARSAT-1 Scenes
received by ground stations worldwide and compiled in the worldwide catalog
system in Canada.
1.1.3 "Commercially Distributed" means the sale or distribution of Data
or Data Products delivered to any person, under any conditions except Data and
Data Products distributed to NASA or NOAA pursuant to the IMOU, Her Majesty the
Queen pursuant to the Master Licence Agreement (including the Government of the
Provinces). Data and Data Products used by Distributor for any purpose including
the production of Value-Added Products shall be deemed to be commercially
distributed.
1.1.4 "Data" means all SAR data received from the RADARSAT-1 satellite
including SAR signal data and ephemeris data and on all media including
photographic and digital media.
1.1.5 "Data Products" means Data processed to include information such as
georeferencing, radiometric corrections and multilooking. These products include
but are not limited to:
SGF - Georeferenced fine resolution products generated in swath section
units.
SGC - Georeferenced coarse resolution products, generated from SGFs in
swath section units.
SSG - Systematically geocoded products generated for user specific
scenes.
SPG - Precision geocoded products generated for user specified scenes.
1.1.6 "DIP" means Derived Image Product. A DIP is a product which still
contains the pixel structure of the original RADARSAT-1 Data.
1.1.7 "Distributed" means any distribution of Data and Data Products to
any person and under any conditions.
1.1.8 "Ex-Works" Richmond, B.C. and/or Gatineau, Quebec, Canada (1990
I.C.C. Incoterms) means the Data or Data Products will be placed at the disposal
of the Distributor at RSI premises, and include standard packaging and marking,
unless otherwise stated. If transmitted by electronic device, Ex-Works Richmond
and/or Gatineau shall be input of the data stream to the equipment or facilities
of the common carrier.
1.1.9 "IMOU" means the International Memorandum of Understanding between
CSA, National Ocean and Atmospheric Administration and the National Aeronautics
and Space Administration concerning the RADARSAT-1 Satellite.
1.1.10 "Master Licence Agreement" means that agreement between Her Majesty
the Queen in Right of Canada, as represented by each of the Canadian Space
Agency and Natural
Page 2
3
Resources Canada, and RSI, including any licences, sublicences and other
licences and agreements contemplated therein.
1.1.11 "Person" means an individual, company, partnership, trust or any
other entity or association including any national, regional or local government
authority or agency thereof.
1.1.12 "RADARSAT Mission Control System" (MCS) means CSA operated facility
located at Saint Hubert, Quebec for control and operation of the RADARSAT-1
Satellite.
1.1.13 "RADARSAT SAR" means the synthetic aperture radar instrument placed
on the RADARSAT-1 Satellite for the transmission of Data to ground receiving
stations.
1.1.14 "RADARSAT-1 Satellite" means the satellite using remote sensing
synthetic aperture radar technology placed into earth polar orbit and operated
by the CSA on behalf of the Government of Canada.
1.1.15 "Scene" means a set of Data which covers a region nominally ranging
from 50 km by 50 km in Fine beam mode to 500 km by 500 km in ScanSAR beam mode.
A Scene may vary in length depending upon the strip of imagery chosen along the
RADARSAT-1 Satellite path.
1.1.16 "Services" means Rush and Near-Real Time processing services,
programming services, orthorectification, and other services as defined by RSI
from time to time but excludes educational materials and brochures.
1.1.17 "Territory" means the country of United States of America
1.1.18 "Value-Added Products" means products derived at least partially
from Data that include a significant addition of other information. Included but
not limited to, are manually and digitally interpreted Data or Data Products,
such as Digital Terrain Models (DTMs) and Digital Elevation Models (DEMs).
ARTICLE 2 - GRANT OF DISTRIBUTORSHIP AND SUBLICENSE
NON-EXCLUSIVE DISTRIBUTORSHIP AND SUBLICENSE
2.1 Subject to the terms hereof, the rights reserved by the IMOU and the
Master Licence Agreement, RSI hereby appoints the Distributor as a non-exclusive
distributor and grants a non-exclusive sublicence for the term of this Agreement
for the sale and distribution pursuant to such sales of Data and Data Products
and associated Services in any form on any media and for any computer
environment in the Territory. Distributor's non-exclusive sublicense hereunder
shall entitle Distributor to sell Data and Data Products and associated Services
to any person in the Territory, including, without limitation, U.S. Government
military, defense and intelligence customers.
NON-DISCRIMINATION
2.2 Subject to the licence restrictions set out in Article 2.1, the
Distributor agrees to make the Data and Data Products and associated Services
available to all residents of the Territory on an open and non-discriminatory
basis consistent with United Nations Resolution A/41/65 of December 3, 1986 on
"The Principles Relating to the Remote Sensing of Earth from Space". No Data or
Data Products or associated Services shall be reserved for the exclusive use of
the Distributor or any particular client.
Page 3
4
TIME OF DISTRIBUTION
2.3 RSI shall ensure that in the absence of an event of Force Majeure, all
Data and Data Products ordered, unless otherwise stipulated in such order, shall
be distributed within ten (10) working days for normal delivery, forty-eight
(48) hours for Rush processing, and within four (4) hours of receipt at the
ground receiving station for Near-Real Time processing where available and
commercially feasible. In the event of a delay as a result of an occurrence of
Force Majeure, RSI shall promptly inform the Distributor of the delay and the
expected delivery date.
ARTICLE 3 - DISTRIBUTOR'S UNDERTAKINGS
SALE OF PRODUCTS
3.1 The Distributor, for itself and its agents, sub-distributors,
representatives and employees agrees to conduct any and all sales activities in
connection with the Data or Data Products or associated Services in a lawful
manner, consistent with the standards of fair trade, fair competition and
business ethics. The Distributor shall service in a competent and professional
manner the Data and Data Products and associated Services requirements of its
clients.
DISTRIBUTION
3.2 The Distributor will distribute Data and Data Products received by it in
such a manner as to satisfy requests for Data and Data Products in the
Territory. The Distributor shall place all Data and Data Product orders directly
and exclusively with RSI. The Distributor shall have no right to archive or
reproduce Data or Data Products and associated Services.
MARKETING EFFORTS
3.3 The Distributor agrees to use commercially reasonable efforts to
diligently and actively develop demand for the Data or Data Products or
associated Services and to solicit purchases thereof. The Distributor agrees to
annually provide RSI with a detailed Marketing and Business Plan in accordance
with Article 3.4.
MARKETING AND BUSINESS PLAN
3.4 The Distributor will provide, every year in advance, RSI with a Marketing
and Business Plan relative to the development of the market in the Territory to
be treated in a confidential manner, stating in particular:
(i) the number of actual (or expected for the first year) clients per
geographic region, and prospects in three categories: immediate prospects,
middle-term prospects and long-term prospects, identifying the main application
and beam mode;
(ii) the expected average number of Data Products to be sold per client and per
beam mode, for major clients;
(iii) the sales force team, dedicated to the marketing and sales of RADARSAT-1
Data and Data Products and associated Services with the area of responsibility
of each of the team members;
Page 4
5
(iv) its quarterly sales objectives on an annual basis. The minimum annual
sales amount to be achieved will be as per the figures detailed in the Marketing
and Business Plan required in Article 3.4. This will be revised each year.
(v) the actions to be taken with the Distributor to:
- present existing Data Products and Services to clients;
- identify clients' needs for new and existing Data Products and Services:
direct marketing including visits, mailings; and indirect marketing including
publications, news releases, conferences, seminars and advertisements;
(vi) the expected support from RSI in terms of:
- commercial or technical documentation;
- follow-up towards international funding agencies when applicable
- radar application experts (costs are borne by the Distributor or the
project)
- joint visits to clients when RSI personnel are in the area
DISTRIBUTOR MEETING
3.5 Once a year RSI will hold a Distributor's meeting. The Distributor will
send at least one member of its Sales Force to attend this meeting in Vancouver
at its own expense.
PERFORMANCE UNDERTAKING
3.6 The Distributor shall work with RSI to achieve sales of Data, Data
Products and associated Services in the Territory.
Failure to achieve these sales objectives could lead to:
(i) analysis by RSI and the Distributor of the reason(s) why the
Distributor has not reached the sales objective;
(ii) implementation by the Distributor of measures aimed at improving the
Distributor's sales volume; in particular RSI and the Distributor will attempt
to link Direct Marketing actions to identifiable RADARSAT projects.
(iii) termination of the contract as it constitutes a material breach for
the purposes of Article 11.1
NEW APPLICATIONS
3.7 The Distributor agrees to use commercially reasonable efforts in diligently
assisting RSI in the promotion of the use of Data and Data Products and
associated Services in the Territory. Distributor shall publicize RADARSAT-1
Data and Data Products and associated Services and potential applications of
such Data and Data Products and associated Services. The Distributor undertakes
to inform users of new products and new applications as developed. RSI and the
Distributor will cooperate as they see fit to inform users and potential users
within the Territory of Data and Data Products and associated Services, and of
new products and potential applications as developed.
Page 5
6
VALUE-ADDED PRODUCTS
3.8 To the extent that it is the Distributor's right to do so, the Distributor
may provide RSI during the term of its distributorship with the non-exclusive
right to distribute RADARSAT Value-Added Products created by that Distributor
and to receive such products for distribution on terms and conditions no less
favourable than comparable distributors (to the extent permitted by law,
regulation, the terms of a prime contract or confidentiality agreement).
RSI places no restriction on worldwide distribution of Value-Added Products
processed from RADARSAT-1 Data and Data Products. The original RADARSAT-1 Data
and Data Products from which the Value-Added Product is generated must be
delivered together with the said Value-Added Product to clients located outside
of the Territory provided that:
* RSI receives a written commitment from the final client that the
RADARSAT-1 Data or Data Products shall not be redistributed or resold to any
third party, and
* The Distributor shall not keep any copy of the said RADARSAT-1 Data or
Data Products
EXPENSES
3.9 Unless otherwise agreed, each party shall pay any and all of its costs and
expenses under this Agreement and shall be solely responsible for the acts and
expenses of its respective sub-distributors, employees, agents and
representatives.
SERVICING OF DATA AND DATA PRODUCTS
3.10 The Distributor shall be responsible for the adequate servicing of any
nature and character of any and all Data and Data Products sold to clients.
Should the Distributor desire RSI personnel to assist the Distributor's client,
RSI will, at the cost of the Distributor, provide upon request the required
assistance.
TRAINING
3.11 The Distributor agrees to ensure that its personnel will be familiar with
and adequately trained to ensure compliance with RSI and CSA objectives,
methods, documentation and procedures relating to Data acquisition and Data
Products distribution as communicated to the Distributor by RSI.
DERIVED IMAGE PRODUCT
3.12 RSI grants the Distributor the right to distribute in the Territory Derived
Image Products processed from RADARSAT-1 Data and Data Products. The original
RADARSAT-1 Data and Data Products from which the Derived Image Product is
generated must be delivered together with the said Derived Image Product to
clients located in the Territory.
The Distributor may provide RSI during the terms of its distributorship with
the non-exclusive right to distribute Derived Image Products generated from
RADARSAT-1 Data and Data Products and created by that Distributor. Distribution
terms and conditions will at least be comparable to Distributor's rights (to
the extent permitted by law, regulation, the terms of prime contract or
confidentiality agreement).
3.13 Royalties are applicable to all second and subsequent sales of Derived
Image Products generated from RADARSAT-1 Data and Data Products and created by
that Distributor. A royalty
Page 6
7
report shall be submitted on a calendar quarterly basis thirty (30) days after
the completion of a quarter.
ARTICLE 4 - LIST PRICE OF DATA, DATA PRODUCTS AND ASSOCIATED SERVICES AND
DISTRIBUTOR DISCOUNT
DETERMINATION OF PRICE
4.1 Data and Data Products and associated Services shall be sold to the
Distributor by RSI at wholesale prices, being RSI's List Price less such
distribution discounts as are communicated by RSI from time to time. In the case
of the Distributor, the distribution discount is fixed at [*CONFIDENTIAL
TREATMENT REQUESTED*] of RSI's List Price, subject to Article 6.1 and unless
otherwise agreed upon in writing.
Any change in the price of the Data or Data Products or associated Services
shall not affect orders by the Distributor that were accepted by RSI before the
price change was communicated.
4.2 Any discount directly negotiated by the Distributor to a client will be
borne by the Distributor except when otherwise agreed to by RSI in writing.
CURRENT PRICE
4.3 The current RSI Price List is attached hereto and incorporated herein by
this reference. The Price List is valid until modified by RSI.
REIMBURSEMENT FOR LABOUR OR MATERIAL REGARDING SPECIAL DELIVERY CONDITIONS
4.4 In the event that any labour or material is required to be supplied by RSI
in an effort to comply with any special delivery condition(s) requested by the
Distributor, any and all costs and expenses approved by the Distributor and
incurred by RSI for such labour or material shall be added to the invoice price
of the RADARSAT-1 Data Products involved.
ARTICLE 5 - ACCEPTANCE OF ORDERS AND SHIPMENT OF PRODUCTS
ACCEPTANCE
5.1 Subject to Articles 5.2, 5.3 and 7.1, RSI will be bound by any order for the
Data or Data Products and associated Services placed by the Distributor. Such
orders shall constitute a binding agreement for RSI to sell and ship, and for
the Distributor to purchase and tender payment for, the Data and Data Products
and associated Services specified under the terms and conditions of this
Agreement.
DATA AND DATA PRODUCTS SUPPLY
5.2 Subject to Article 7.1, RSI will use commercially reasonable efforts to
diligently supply ordered Data and Data Products and associated Services for the
duration of the Agreement under the normal operational capability of the
satellite. RSI agrees, subject to adequate collection and processing time being
made available by CSA, to deliver against orders sufficient Data and Data
Products and associated Services to meet the Distributor's requirements. The
Distributor acknowledges that Data acquisition is subject to the operational
requirements of CSA.
Page 7
8
INCONSISTENT TERMS IN AN ORDER
5.3 In the event that any terms or conditions contained in the Distributor's
order are inconsistent with the terms of this Agreement, such inconsistent terms
or conditions in the order shall not be binding on RSI.
TECHNICAL PERSONNEL
5.4 RSI will make available for such periods of time and under such conditions
as it may deem appropriate, the services of its technical personnel to consult
with and assist with the distribution of Data and Data Products and associated
Services.
SHIPPING OF THE PRODUCTS
5.5 RSI shall promptly ship to the Distributor the Data or Data Products set
forth in an accepted order to the Distributor, after RSI's acceptance of such an
order and payment therefor. It is understood and agreed that any and all
typographical and clerical errors contained in RSI's shipping documents shall be
subject to correction by RSI.
DISCHARGE OF RSI'S OBLIGATION
5.6 RSI's List Prices are given Ex-Works RSI's premises, Richmond, British
Columbia, or Gatineau, Quebec, Canada (1990 I.C.C. Incoterms). RSI will arrange,
at the Distributor's cost and upon the Distributor's request, shipping of the
Data or Data Products covering risk of loss and damages which could occur during
transportation. In case of loss or damages during shipment, RSI will replace the
Data or Data Products at no cost to the Distributor. RSI will accommodate
special shipping requirements where feasible and upon the Distributor's request.
ARTICLE 6 - PAYMENTS
6.1 All amounts from Data, Data Products and associated Services delivered shall
be due thirty (30) days from the date of RSI invoice by the Distributor in the
Territory. Any overdue sums are subject to interest charges at the rate of 1.5%
per month until payment is made. All payments due hereunder will be in U.S.
dollars.
TAXES
6.2 Payments required under this Agreement are to be net of all taxes, duties
and levies of any kind (including withholding taxes) that may be applicable in
the Territory. In the event that any taxes are imposed by any level of
government in the Territory on payments made under this Article, the Distributor
will add the amount of such taxes to the payments required hereunder.
PAYMENT OF DISTRIBUTOR'S DISCOUNT
6.3 Should RSI directly invoice the Distributor's client, at the Distributor's
request, then, upon receipt of the client's final payment and unless otherwise
agreed upon in writing, RSI will remit to the Distributor the Distributor's
discount of an amount equal to twenty five percent (25%) of the RSI List Price
of Data, Data Products and associated Services less the difference between the
List Price and the actual sale price.
Page 8
9
ARTICLE 7 - NO GUARANTEE
DATA SUPPLY
7.1 It is understood and agreed that because of the substantial elements of risk
relating to operation of the RADARSAT-1 Satellite and the RADARSAT SAR beyond
the control of the CSA, neither CSA nor RSI guarantees Data continuity, the
quality or the availability of Data or Data Products or their suitability for
any purpose. Availability of Data or Data Products shall be dependent upon the
operational capability of the RADARSAT SAR. Acceptance of an order by RSI shall
not constitute guarantee of delivery. The Distributor acknowledges and agrees
that the transmission of Data may be temporarily suspended on the space or
ground segments. In such case, the Distributor will be notified in writing of
such suspension and advised of projected resumption of transmission. The
Distributor acknowledges that Data acquisition is subject to the operational
requirements of CSA.
WARRANTY LIMITATION
7.2 Except as expressly stated in this Agreement, the Data and Data Products are
provided and sublicenced "as is" and there are no warranties, representations or
conditions expressed or implied, written or oral, arising by statute, operation
of law or otherwise regarding them or any other Data Products or Services
provided under this Agreement or in connection therewith. CSA and RSI disclaim
any implied warranty or condition of merchantable quality, merchantability,
durability or fitness for a particular purpose. No representation or other
affirmation of fact including but not limited to statements regarding
performance of the Data or Data Products which is not contained in this
Agreement shall be deemed to be a warranty by RSI or CSA. No agreements varying
or extending this warranty or the foregoing limitations will be binding on RSI
or CSA unless in writing and signed by an authorized officer of RSI in the case
of RSI or by an authorized representative of CSA in the case of CSA.
ARTICLE 8 - LIABILITY
EXCLUSIONS
8.1 In no event will RSI or CSA be liable for incidental, indirect, special or
consequential damages, any damages whatsoever resulting from loss of use of the
Data or Data Products, or loss of profits, arising out of or in connection with
this Agreement or the use or performance of the Data or Data Products or storage
material or other RSI or CSA provided material, whether in an action in contract
or tort, including but not limited to negligence.
LIMITATION
8.2 The aggregate liability of RSI or CSA shall not, in any event, including,
without limitation, negligence, breach of contract, misrepresentation or
otherwise, in respect of a single occurrence or a series of occurrences in any
circumstances, exceed the amount paid by the Distributor to RSI in respect of
the Scene(s) ordered, sold or distributed, which is the subject matter of the
action.
INDEMNITY
8.3 The Distributor shall indemnify and save harmless CSA and RSI against any
and all claims, demands, costs and liabilities (including legal fees and
expenses) of any kind whatsoever arising directly or indirectly by third parties
related to the provision or use of Data, Data Products,
Page 9
10
Derived Image Products and Value-Added Products, excluding claims based upon
breach of copyright of the Data and Data Products and Derived Image Products.
ARTICLE 9 - COPYRIGHT
CSA COPYRIGHT
9.1 All copyright in the Data, Data Products and Derived Image Products are and
remain vested in the CSA. In all distribution and sale of the licenced Data,
Data Products and Derived Image Products by the Distributor, other than
Value-Added Products, the Distributor will affirm CSA's copyright or will affix
CSA's copyright notice in the distribution and sale of such Data, Data Products
and Derived Image Products by the Distributor.
All media containing Data and Data Products delivered by RSI shall be clearly
marked by RSI prior to delivery to the Distributor or directly to clients of
the Distributor with the following legend:
RADARSAT-1 Data (C) Canadian Space Agency/Agence spatiale canadienne
19_(year of acquisition). Distributed under Licence by RADARSAT
International Inc.
END USER LICENCE
9.2 RSI shall provide to the Distributor the form of end user licence annexed as
Exhibit A to be used for the distribution and sale of the licenced Data and Data
Products or Derived Image Products by the Distributor. The Distributor shall not
amend the terms thereof without the prior agreement of RSI in writing. Terms of
sale to end users must specify that, except to the extent permitted by the end
user licence, the end user is acquiring Data, Data Products and Derived Image
Products for its own use and not for resale or redistribution directly to or to
prime contractors or subcontractors of any other tier for delivery in any other
format.
PACKAGING
9.3 The Parties shall clearly mark all packaging of licenced Data, Data Products
that are shipped, distributed or sold by either of them with the following
inscription: "Distributed under Licence by RADARSAT International Inc.".
OFFICIAL MARK AND LOGOS
9.4 The Distributor acknowledges and agrees that "RADARSAT" and the logos
associated therewith are official marks and the sole and exclusive property of
CSA under licence to RSI, while RSI and the logos associated therewith are
trademarks and the exclusive property of RSI and that the Distributor shall
neither have nor acquire any interest in the marks save and except for a right
to use in the manner expressly provided for in this Agreement.
ARTICLE 10 - INFRINGEMENT
COOPERATION
10.1 The Distributor shall cooperate fully and in good faith with RSI or CSA as
required for the purpose of securing and preserving CSA's rights in and to the
copyright of the Data, Data Products and Derived Image Products.
Page 10
11
NO ASSIGNMENT
10.2 Nothing contained in this Agreement shall be construed as an assignment to
the Distributor of any right, title, or interest in or to the copyright of the
Data, Data Products and Derived Image Products. All rights relating to the
copyright of the Data, Data Products and Derived Image Products are expressly
reserved by CSA, except for the licence expressly granted to RSI and the
sublicence expressly granted to the Distributor hereunder in respect of the
Data. The Distributor shall not at any time acquire any rights in such copyright
of Data, and Data Products by virtue of any use it may make of any of them. Upon
termination or expiration of the Agreement, the Distributor shall be deemed to
have assigned, transferred, and conveyed to CSA all rights in and to the
copyright of the Data, Data Products which may have been obtained by, or accrued
to or vested in the Distributor hereunder. The Distributor shall execute any and
all instruments reasonably requested by RSI or CSA to accomplish or confirm the
foregoing. Any such assignment, transfer, or conveyance shall be without any
consideration other than the mutual covenants and considerations of this
Agreement.
NO ATTACK
10.3 The Distributor acknowledges CSA's exclusive right, title, interest and
benefit in and to the copyright of the Data, Data Products and Derived Image
Products in all countries of the world and shall not, at any time while a
sublicencee hereunder do or cause to be done any act or thing to dispute,
contest, attack, impair or tend to impair, any part of such right, title,
interest or benefit. The Distributor will not at any time, either during the
term or at any time after the termination for any reason whatsoever or
expiration of this Agreement, directly or indirectly, violate the rights in the
copyright of the Data or Data Products or Derived Image Products, or dispute,
contest, attack, impair or tend to impair, the validity of any registration of
the copyright or the title thereto, or assist any other person disputing,
contesting, attacking, impairing or tending to impair, the same, or obtain or
apply to obtain, or to prevent CSA from obtaining, a registration for the
copyright of the Data or Data Products or Derived Image Products.
COMPLIANCE
10.4 The Distributor shall mark all advertisements for the Data and Data
Products, including packaging, with such markings, information and labeling, as
may be required by the federal, provincial and local laws of each jurisdiction
of the Territory, in accordance with all codes and industry standards of
relevant organizations, and as may be reasonably requested by RSI or CSA.
DEFENCE BY CSA
10.5 CSA is entitled at its discretion, but shall not be obligated, to defend,
at its own cost, any proceeding instituted, even by way of a counterclaim, for
the expungement, or declaration of non-infringement, of the copyright Data and
Data Products. Should CSA choose to defend such proceeding, it may give notice
to RSI and to the Distributor to such effect at the cost of CSA.
DEFENCE BY DISTRIBUTOR
10.6 If CSA shall decide not to defend any such proceeding, it shall, within
thirty (30) days of service on CSA of the initial pleadings in the proceeding,
give such notice to RSI and RSI shall give such notice to the Distributor, and
RSI may or failing which the Distributor may defend such proceeding at its own
cost. In such case, CSA, the Distributor and RSI, as the case may be, shall, at
their expense, provide all reasonable assistance.
Page 11
12
WATCH
10.7 The Distributor shall keep reasonable watch during the term of this
Agreement for any products and activities which may, in the opinion of the
Distributor, violate the rights of CSA in any of the copyright of the Data, Data
Products and Derived Image Products. Upon discovery of any such violation,
suspected, threatened or actual, the Distributor shall promptly deliver to RSI
and CSA notice of the pertinent facts known to the Distributor relating to
suspected, threatened or actual infringement.
ACTION BY CSA
10.8 Upon receipt of the notice, CSA shall have three (3) months, in its
discretion, to institute appropriate proceedings against the alleged violator or
to take steps to settle the matter. In no event shall CSA be obliged to
institute any proceedings or take any steps to settle. If CSA institutes such
proceedings or takes such steps to settle, CSA shall give notice to RSI and RSI
shall give such notice to the Distributor. RSI and the Distributor shall execute
any documents necessary for such proceedings or settlement and each shall
provide any evidence and available information to CSA. The benefits of any
settlement efforts and proceedings commenced by CSA shall accrue to, and the
costs of any such efforts and proceedings shall be borne by, CSA.
NO ACTION BY CSA
10.9 If, within such three (3) month period, CSA does not give notice to RSI
that it has commenced appropriate proceedings against the alleged violator or
has taken and continues to take steps to settle the matter, and if the alleged
violation has not ceased, RSI and failing it, the Distributor, shall have the
right, for a period of two (2) months, commencing the day after the last day in
such three (3) month period, to institute appropriate proceedings against the
alleged violator or to take such steps to settle, unless prior to the expiration
of the two (2) month period within which RSI or the Distributor has the
exclusive right to take action, CSA advises RSI that neither RSI nor the
Distributor shall have the right to institute proceedings with respect to the
violation or to take such steps to settle. If, within such two (2) month period,
RSI and failing it, the Distributor, does not commence appropriate proceedings
against the alleged violator or take such steps to settle, CSA shall thereafter
be the only party entitled to institute such proceedings or to take steps to
settle, unless RSI or the Distributor is specifically authorized in writing to
do so by CSA.
ACTION BY THE DISTRIBUTOR
10.10 If the Distributor institutes such proceedings, the Distributor shall
immediately give notice to CSA and RSI, and CSA and RSI shall execute any
documents necessary for such proceedings and shall provide any evidence and
available information to the Distributor. The benefits of any settlement or
proceedings commenced by the Distributor shall belong to Distributor.
COOPERATION
10.11 The parties shall cooperate with each other with respect to any
proceeding, settlement negotiations or other actions taken in respect of third
party violators of rights in any of the copyright of the Data, Data Products and
Derived Image Products and to keep the other party promptly and fully advised
with respect thereto. In the event that any party elects to institute
Page 12
13
proceedings, such party shall, to the extent practicable, furnish to the other
parties copies of all pleadings and other relevant documents.
ARTICLE 11 - TERMINATION FOR CAUSE
DEFAULT
11.1 Either party may, upon written notice to the other, terminate this
Agreement because of the material breach by the other of any provision of this
Agreement, including performance undertakings that the other party fails to
remedy within thirty (30) days of receipt of a written notice to this effect.
INSOLVENCY
11.2 This Agreement shall terminate if either party shall become insolvent or
bankrupt or shall avail itself of any statute pertaining to insolvency or if the
Distributor has recourse to statutory avoidance of its obligations under this
Agreement.
ARTICLE 12 - TERMINATION FOR CONVENIENCE
TERMINATION BY CSA
12.1 In the event that the Master Licence Agreement is terminated by CSA, under
Article 15 thereof the parties shall have no further liability to each other.
Provided however that this Agreement shall not be terminated if RSI shall
dispute such termination in which event the contract hereunder shall be
suspended until final resolution of such dispute under the terms of the Master
Licence Agreement.
ARTICLE 13 - FORCE MAJEURE
DELAY
13.1 Unless otherwise specifically provided in this Agreement, no default or
breach shall be deemed to occur nor shall either Party be liable to the other
for any loss, damage, delay in the performance or the non-performance of any
obligations caused by an event of force majeure.
DEFINITION
13.2 The events of force majeure include but are not limited to: war, riot,
fire, flood, strike, the act of any Government or authority outside of this
Agreement, acting either in its sovereign or contractual capacity, and lockout,
strikes or other labour disputes and other events that are unavoidable and
beyond the Party's reasonable control.
NOTICE
13.3 Upon the occurrence of such an event, the Party whose obligation is
affected shall provide a Notice to the other Party describing the event, the
reasonable means to be used to circumvent the effects of the event as well as
any consequences on any existing timetable for the fulfillment of the Party's
obligation and the timetable and performance obligations shall be amended
accordingly.
Page 13
14
TERMINATION UNDER FORCE MAJEURE
13.4 Should the event of force majeure continue for a period exceeding three (3)
months, then either Party may provide the other with a notice of its intention
to terminate this Agreement. The Parties will then meet and discuss the
situation including possible alternate means to resume the performance before
the termination becomes effective.
ARTICLE 14 - CONFIDENTIALITY
RESTRICTIONS
14.1 Each of the Parties hereto agree to keep confidential without restriction
any and all information with respect to the other Party which it has received or
may in future receive in connection with this Agreement which is not otherwise
available to the general public unless: such confidential information becomes
public knowledge thereafter without fault on the part of each Party; is already
available to the public at the time of disclosure; is received by each Party
from a third party who is not in violation of a confidential disclosure
agreement with the Corporation; or is independently developed by each Party.
Notwithstanding the foregoing, each of the Parties shall be entitled to disclose
such information:
i) to its agents, employees or representatives who have a need to know
such information for the purpose of performance under this Agreement and
exercising the rights granted under this Agreement,
ii) to the extent required by applicable law, or
iii) during the course of or in connection with any litigation, arbitration
or other proceedings based upon or in connection with the subject matter of this
Agreement.
ARTICLE 15 - ASSIGNMENT, SUBCONTRACTING AND SUBLICENSING
ASSIGNMENT
15.1 The Distributor may not assign or subcontract all, substantially all or a
material portion of or sublicence any portion of this Agreement or rights
granted hereunder (except the final user licence as provided herein) without the
prior consent of RSI, which consent may be unreasonably withheld at RSI's
discretion. Any permitted subcontracting or sublicencing by the Distributor
shall not relieve the Distributor of any of its obligations hereunder including
the reporting of sales and the payment of royalties and other amounts due to
RSI. In the event of a change of control of the Distributor, directly or
indirectly, such change of control shall, for the purposes of this paragraph, be
deemed to be an assignment and shall not be valid without the prior written
consent of RSI, which may be unreasonably withheld. RSI may, or may be required
by CSA pursuant to the Master Licence Agreement to, without consent of the
Distributor, assign this Agreement to CSA, which assignment shall be binding
upon the Distributor.
Page 14
15
ARTICLE 16 - CONTRACT DOCUMENTS
WHOLE AGREEMENT
16.1 This document as well as the Appendices hereto form part of this Agreement.
APPENDICES
16.2 The Commercial Appendix to this Agreement is incorporated by reference into
this Agreement to the extent that its provisions affect the carrying out of this
Agreement.
CONFLICT
16.3 In the event of conflict or inconsistencies between the documents referred
to herein, the order of precedence shall be as follows:
1. The Articles to this Agreement (this document)
2. Commercial Appendix to this Agreement - Catalog Price List
3. Exhibit A to this Agreement - End User License
4. Exhibit B to this Agreement - List of Derived Image Products
PROCEDURE
16.4 This Agreement supersedes and replaces any previous understandings and
agreements between the Parties in relation to the matters dealt with in this
Agreement.
ARTICLE 17 - AMENDMENTS
AMENDMENT
17.1 No amendment to this Agreement shall have any effect unless it is in
writing and is duly approved by authorized representatives of the Parties.
PERMITTED AMENDMENT
17.2 The Distributor acknowledges that commercial or technical procedures,
formats, media specifications, technical parameters and specifications imposed
under the terms of this Agreement including, without limitation, the RADARSAT
System Specification Document RSCSA-SP002, the quality specifications of the
Data, the media and/or format of the Data and Data Products sold, the procedure
related to the daily update of the Catalog, the list of Derived Image Products
may be amended when necessary, as required by the status of the satellite
itself, or by reasonable and prudent management of the Data and Data Products
and the sale, use and/or distribution or redistribution thereof. The Distributor
shall be notified of such modifications, as they may arise and whenever
possible, but shall be notified at least four (4) weeks in advance, and the
Distributor will undertake to comply with the same with reasonable diligence.
Page 15
16
ARTICLE 18 - APPLICABLE LAW
LAW
18.1 This Agreement shall be interpreted in accordance with the laws in force in
the Province of British Columbia. The Parties irrevocably and specifically
attorn to the exclusive jurisdiction of the courts of the Province of British
Columbia except in respect to the enforcement of the judgments of such courts in
other jurisdictions. The Parties explicitly agree to exclude the application of
the United Nations Convention on Contracts for the International Sale of Goods
to this Agreement.
CONSULTATION
18.2 Where RSI is permitted by the terms of this Agreement to determine
standards or fix other requirements from time to time, it shall do so acting
reasonably and shall, where possible, consult with the Distributor prior to said
determination with respect to the impact or implementation of same.
DISPUTES
18.3 The Parties agree that they shall use reasonable best efforts to resolve
any dispute arising, out of this Agreement including any dispute concerning the
meaning of its terms and the Parties performance or failure to perform their
obligations hereunder.
ARBITRATION
18.4 In the event that the Parties are not able to resolve any such dispute, the
Parties agree that all disputes thereafter will be settled by arbitration and
not by judicial proceedings. The Parties agree further that the rules of the
commercial arbitration code as set out in the schedule to the Commercial
Arbitration Act of Canada and based upon the model law on International
Commercial Arbitration as adopted by the United Nations Commission on
International Trade Law on June 21, 1985 shall apply. Any arbitration in respect
of the subject matter of this Agreement shall be conducted in Vancouver, British
Columbia, Canada in English.
ARTICLE 19 - TERM
19.1 This Agreement shall be effective on execution hereof by the Parties,
however, the operating terms and obligations shall commence on the date of
signature of this Agreement and subject to the performance of the obligations
set out herein, continue until the earliest of the following events:
(i) three (3) years from the commencement date,
(ii) the date on which the RADARSAT SAR shall cease to be functional, or
Page 16
17
(iii) the date on which the Master Licence Agreement for the Data and Data
Products shall be discontinued or terminated.
SURVIVAL
19.2 Notwithstanding the termination of this Agreement for any reason, the
obligations set out in Articles 6, 7.2, 8, 9, and 14 shall survive such
termination.
ARTICLE 20 - MISCELLANEOUS
HEADINGS
20.1 The headings and any sub-headings of Articles in this Agreement are for
convenience only and shall not be considered in the interpretation of the
Agreement.
INDEPENDENT CONTRACTORS
20.2 The Parties to this Agreement are independent contractors. No relationship
of principal to agent, master to servant, employer to employee or franchiser to
franchisee, is established hereby between the parties. No Party has the
authority to bind any other Party hereto or incur any obligations on its behalf.
SEVERABILITY
20.3 In the event that any one or more of the provisions of this Agreement shall
be found to be illegal or unenforceable, this Agreement shall, unless otherwise
determined by RSI, nevertheless remain in full force and effect and such term or
provision shall be deemed severed. RSI may, in the event of any provision being
deemed unenforceable, on sixty (60) days notice terminate the Agreement.
WAIVER
20.4 No Party's rights to enforce the provisions of this Agreement shall be
affected by any prior course of dealing, waiver, delay, omission or forbearance.
CSA CONSIDERATION
20.5 The Distributor acknowledges that all obligations imposed on the
Distributor in respect of CSA are given for value including the programming of
RADARSAT-1 Satellite and supply of the Data therefrom and the Distributor
acknowledges both receipt and sufficiency of such consideration and agrees to be
bound by all such obligations to CSA.
ARTICLE 21 - OFFICIAL NOTIFICATION
21.1 All notices required or permitted hereunder shall be in writing and shall
be delivered or sent prepaid by airmail, telex, telegram, or facsimile to the
following address:
a) if to RSI
RADARSAT International Inc.,
13800 Commerce Parkway
Page 17
18
MacDonald Dettwiler Building
Richmond, British Columbia,
Canada V6V 2J3
Attention: Dr. John Hornsby, Vice President, Sales and Marketing
Facsimile: (604) 231-4999
with a copy to:
La Barge Weinstein
Xerox Tower
333 Preston Street, 11th Floor
Ottawa, Ontario K1S 5N4
Attention: Mr. P.C. LaBarge
Facsimile: (613) 231-3900
(b) if to Distributor: ORBIMAGE
ORBIMAGE
21700 Atlantic Boulevard
Dulles, Virginia
USA 20166
Attention: Mark Callis
Facsimile: 703-406-5552
21.2 Notices shall be deemed given upon receipt. Either Party may change the
above addresses and person designated to receive notice, upon reasonable prior
written notice to the other.
ARTICLE 22 - SIGNATURE
This Agreement has been executed by the parties hereto.
RADARSAT International Inc.
Signed:
---------------------
Title: Dr. John Hornsby, Vice President, Sales and Marketing
Date:
------------------------
Distributor: ORBIMAGE
Signed:
---------------------
Page 18
19
Title:
------------------------
Date:
--------------------------
DATA LICENCE AND DISTRIBUTION AGREEMENT
COMMERCIAL APPENDIX
(RADARSAT INTERNATIONAL PRICE LIST)
Page 19
20
EXHIBIT A
RADARSAT INTERNATIONAL INC. LICENCE AGREEMENT
IMPORTANT - READ CAREFULLY BEFORE OPENING DATA PACKAGE
THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU, THE CANADIAN SPACE AGENCY
("CSA") AS OWNER OF THE DATA AND RADARSAT INTERNATIONAL INC. ("RSI") AS MASTER
LICENCEE FROM CSA OF THE DATA. OPENING THE ENCLOSED DATA PACKAGE MAKES YOU THE
END USER (THE "LICENCEE") OF THE DATA CONTAINED THEREIN AND INDICATES YOUR
ACCEPTANCE OF THE TERMS AND CONDITIONS IN THE LICENCE AGREEMENT AND LIMITED
WARRANTY (COLLECTIVELY THE "LICENCE"). IF YOU DO NOT AGREE WITH THE TERMS AND
CONDITIONS, YOU SHOULD, WITHOUT BREAKING THE SEAL, RETURN THE ENCLOSED PACKAGE
AND THE OTHER ITEMS WHICH ARE PART OF THIS PRODUCT WITHIN TWO (2) WEEKS OF
RECEIPT TO RADARSAT INTERNATIONAL INC. AND YOU WILL RECEIVE A FULL REFUND.
BY OPENING THIS PACKAGE, THE LICENCEE ACKNOWLEDGES THAT IT HAS READ THIS
LICENCE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THE
LICENCEE ALSO AGREES THAT THIS LICENCE IS THE COMPLETE AND EXCLUSIVE AGREEMENT
BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR
WRITTEN, ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT
MATTER HEREIN. THIS LICENCE CANNOT BE MODIFIED OR RESCINDED, NOR MAY ANY OF ITS
TERMS BE CANCELLED OR WAIVED.
GRANT OF LICENCE: The enclosed package contains CSA Data, Data Products and
accompanying written materials (collectively the "Data") containing intellectual
property rights proprietary to CSA and under licence to RSI and its
sublicencee(s).
The Licencee agrees that the Data may be used only for the internal business use
of the Licencee and may not be reproduced, published, distributed, sold, leased,
rented, licenced, copied or disposed of in any other manner. The Licencee
acknowledges that the Data is a valuable and unique asset and is disclosed to
the Licencee on the basis that it represents confidential information. The
Licencee will only disclose the Data to its employees, contractors and
consultants directly related to the Licencee's internal use of the Data. In
addition, the Licencee agrees to take appropriate action, by instruction,
agreement or otherwise, with any persons or organizations permitted access to
the Data, including appropriate security measures to prevent illegal disclosure,
all so as to enable the Licencee to satisfy its obligations contained herein.
Page 20
21
Use of the Data by anyone other than the Licencee shall constitute infringement
of these rights. Upon payment for the use of the Data, RSI grants to the
Licencee a limited, perpetual, non-exclusive licence to use this copy of the
Data. This Licence certifies the Licencee to:
(a) make the authorized number of internal copies of the Data in
support of the Licencee's use of the Data on a single workstation with a single
central processing unit, but not to network or distribute the Data for
Licencee's use or otherwise;
(b) use the Data solely for internal purposes of the Licencee.
Contractors or consultants working for the Licencee may have access to the Data
for purposes related to the Licencee's internal use of the Data; and
(c) the purchaser agrees to respect CSA copyright interest and, in
particular, shall not distribute or sell RADARSAT Derived Image Products (DIP)
or copies thereof unless they have been authorized to do so in writing from RSI.
DIPs include but are not limited to, mosaics, geocoding, sub-scenes and
sub-sampling.
(d) reproduce and distribute Value-Added Products from the Data where
"Value-Added Products" are defined as Data that includes a significant addition
of other information including but not limited to:
i. classifications; (manual and digital interpretations of Data
or Data Product)
ii. products derived from the Data and Data Products such as
Digital Terrain Models.
CSA and RSI reserve all rights not specifically granted to Licencee. The
Licencee will be held legally responsible for any copyright infringement which
is caused or encouraged by its failure to abide by the terms of this Licence.
For greater certainty, the Licencee may not copy, modify or transfer the Data,
in whole or in part, other than as expressly set out in this Agreement.
OWNERSHIP OF DATA: The Licencee owns the magnetic or other physical media on
which the Data is originally or subsequently recorded or fixed, but an express
condition of this Licence is that CSA retains title and ownership of the Data
recorded on the original diskette copy and all subsequent copies of the Data,
regardless of the form in or media on which the original and other copies may
exist. This Licence is not a sale of the original Data or any copy, translation
or compilation thereof, in whole or in part. The access to and use of the Data
does not grant the Licencee any right to use, without prior written consent, any
trademarks, tradenames or logo of CSA or others.
RESTRICTION ON TRANSFER: This License and the Data may not be transferred to
anyone without the prior written consent of RSI. Any transferee of the Licence
shall be bound by the terms and conditions of this Licence. The Licencee is
strictly prohibited from distributing, leasing, selling or otherwise disposing
of the Data. For the purposes of this Licence, any distribution or disposition
by Licencee to any branch, agency, office, division, subdivision, subsidiary or
affiliate of the Licencee is strictly prohibited without the consent of RSI. The
Licencee shall not reverse engineer, decompile or disassemble the Data or
transfer the Data to another machine readable language, or attempt any
foregoing.
TERMINATION: This Licence will terminate automatically without notice from RSI
if (i) the Licencee fails to comply with any of its provisions, (ii) the
Licencee becomes insolvent or bankrupt, or (iii) the Licencee passes a
resolution for the winding up of its affairs. Upon termination, the Licencee
shall destroy all copies of the Data and any accompanying written materials,
including any modified copies, translations or compilations thereof, if any.
GOVERNING LAW: This Licence is governed by the applicable laws of Canada and the
Province of British Columbia, and shall enure to the benefit of CSA and/or RSI,
their successors and assigns. The parties irrevocably and specifically attorn to
the exclusive jurisdiction of the Courts of the Province of British Columbia.
The parties
Page 21
22
expressly exclude the application of the United Nations Convention on Contracts
for the International Sales of Goods and the implementing legislation thereto.
DISCLAIMER OF WARRANTY AND LIMITED WARRANTY: The entire risk as to the results
and the performance of the Data is assumed by the Licencee. The Data is provided
"as is" without warranty of any kind, other than RSI warrants that the storage
media on which the Data is supplied to Licensee is free from defects in
materials and workmanship under normal use and service for a period of ninety
(90) days from the date of purchase. CSA's entire liability and the Licencee's
exclusive remedy with respect to the Data is, at RSI's option, to either (a)
return the purchase price paid by the Licencee directly to RSI or distributor of
the Data, whichever is less or (b) replace the Data that does not meet this
Limited Warranty.
In no event shall CSA or anyone else who has been involved in the creation,
production, distribution or delivery of the Data, be liable for any damages
whatsoever (including, without limitation, damages for loss of profits, business
interruption, loss of business information, and the like, or any consequential
damages) arising out of or resulting from the use of or inability to use the
Data or the performance of the Data, storage media or other CSA provided
material, whether in an action in contract or tort, including, but not limited
to, negligence.
Except as provided above, CSA and RSI disclaim all warranties, either expressed
or implied, including but not limited to implied warranties of merchantable
quality, merchantability, durability or fitness for a particular purpose, with
respect to the Data and any accompanying written materials.
THE ABOVE IS THE ONLY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, IN LIEU
OF ANY OTHER WARRANTY INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, THAT ARE MADE BY CSA AND
RSI FOR THIS PRODUCT.
ORAL OR WRITTEN INFORMATION OR ADVICE OR OTHER AFFIRMATION OR FACT INCLUDING,
BUT NOT LIMITED TO, STATEMENTS REGARDING PERFORMANCE OF DATA GIVEN BY CSA AND/OR
RSI, THEIR AGENTS OR EMPLOYEES, RSI'S DEALERS OR DISTRIBUTORS, SHALL NOT CREATE
ANY OTHER WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY AND
THE LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
Page 22
23
LIST OF DERIVED IMAGE PRODUCTS (DIPS)
EXHIBIT B
DERIVED IMAGE PRODUCTS ROYALTIES
---------------------- ---------
- - Sub-sampled scenes, sub-scenes and imagettes *
- - Basic image processing such as speckle-filtering, appliance of LUT, histogram equalization, *
contrast stretching, etc.
- - Coloured composite image using multiple data sets *
- - Non-orthorectified mosaic with or without a simple layout *
- - Orthorectified scene or sub-scene derived from a DTED Level 0 or 1 or 2 DEM with or without a *
simple layout
- - Orthorectified mosaic derived from a DTED Level 0 or 1 or 2 DEM with or without a simple layout *
- - Georeferenced space maps with index map, mapsheet reference, layout, embedded names, etc. *
- - Geocoded space maps with index map, mapsheet reference, layout embedded names, etc. *
- - Orthorectified space maps with index map, mapsheet reference, layout embedded names, etc. *
Orthorectification performed with a DTED Level 0 or 1 or 2 DEM
* CONFIDENTIAL TREATMENT REQUESTED.
Page 23