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EXHIBIT 10.23
ORBIMAGE DISTRIBUTION AGREEMENT
THIS ORBIMAGE DISTRIBUTION AGREEMENT (the "Agreement") is entered into
as of August 4, 1999, by and between Orbital Imaging Corporation, a corporation
organized and existing under the laws of Delaware ("ORBIMAGE"), whose principal
place of business is 21700 Atlantic Blvd., Dulles, Virginia, 20166 United States
of America, and Spot Image, a societe anonyme organized and existing under the
laws of France ("DISTRIBUTOR"), whose principal place of business is 5 rue des
Satellites, BP 4359, F-31030 Toulouse Cedex 4, France.
RECITALS
WHEREAS, ORBIMAGE is authorized by the United States Department of
Commerce (the "DOC") to operate a private remote-sensing space system pursuant
to the DOC License; and
WHEREAS, pursuant to the DOC License, ORBIMAGE is in the business of
selling high resolution satellite imagery to commercial and government users
throughout the world; and
WHEREAS, DISTRIBUTOR desires to distribute ORBIMAGE satellite imagery
inside and outside of the Territory (as defined herein) and to use the ORBIMAGE
Trademarks (as defined herein) in connection therewith, on the terms and
conditions set forth in this Agreement; and
WHEREAS, ORBIMAGE desires to appoint DISTRIBUTOR as its exclusive
distributor of such imagery in the Territory and its non-exclusive distributor
of such imagery outside of the Territory, and to grant DISTRIBUTOR a license to
use the ORBIMAGE Trademarks in connection therewith, on the terms and conditions
set forth in this Agreement; and
WHEREAS, the DOC License contains certain requirements and limitations
with respect to the sale of such imagery applicable to ORBIMAGE and DISTRIBUTOR,
as more fully described herein.
NOW THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein by this reference, the mutual covenants, agreements,
representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ORBITAL IMAGING CORPORATION
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SECTION 1. DEFINED TERMS
Capitalized terms used in this Agreement shall have the meanings set
forth below:
"Current SRP" has the meaning set forth in section 9(d).
"Designated Earth Station" means the earth station designated by
DISTRIBUTOR, to be located in or near Toulouse, France, that shall be capable of
receiving, processing and archiving OrbView Data.
"Designated Non-Exclusive Countries" means the countries set forth on
Schedule 1(a), which schedule sets forth estimated aggregate annual revenues for
each of said countries during the term hereof.
"Distributor Archive" shall mean DISTRIBUTOR's archive of Standard
Products and Value-Added Products acquired or created by DISTRIBUTOR hereunder.
"Distributor Data" means (i) Standard Products or Value-Added Products
of the Territory (whether such products are generated from OrbView Data obtained
from the ORBIMAGE Reserved Satellite Capacity or the DISTRIBUTOR Reserved
Satellite Capacity), (ii) Standard Products or Value-Added Products of areas
outside of the Territory which fall within the Imaging Radius of the Designated
Earth Station, provided that such products were generated from OrbView Data
obtained during DISTRIBUTOR's imaging window assigned pursuant to Schedule 3(b)
hereto, and (iii) any Recorder Data.
"DISTRIBUTOR Reserved Satellite Capacity" has the meaning set forth in
section 3(b).
"DOC" has the meaning set forth in the Recitals.
"DOC License" means the license issued by the DOC on May 5, 1994, as
amended to date, pursuant to which ORBIMAGE is authorized to operate a private
remote-sensing space system, and any orders, interpretations or rulings issued
thereunder (a complete copy of which is attached hereto as Exhibit 1), as such
may be hereinafter amended or replaced from time to time.
"DOC License Sale" has the meaning set forth in Sections 3(i)(i) and
(ii).
"Earth Station Agreement" has the meaning set forth in Section 6(a).
"End User Agreement" has the meaning set forth in Section 2(d).
"Existing Customer Agreement" shall have the meaning set forth in
Sections 2(a)(ii) and 2(c)(ii)(B).
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"GEM" has the meaning set forth in Section 9(b)(i).
"GEM Value" has the meaning set forth in Section 9(b)(i).
"Gross Revenues" means all revenues from the sale or other disposition
of the applicable product or service actually received by the applicable party,
net of any amounts received as or for any value-added (VAT), sales, use, customs
or other taxes required to be collected under applicable law, provided that in
no event shall the amount of any income or similar taxes be excluded from the
calculation of gross revenues.
"Guaranteed Annual Minimum" has the meaning set forth in Section
8(b)(i).
"High-Resolution Satellite(s)" means one or both of the high-resolution
imaging satellites being constructed by ORBIMAGE or its affiliates that are
currently designated "OrbView-3" and "OrbView-4."
"Imaging Radius" means the area within a two thousand (2,000) kilometer
radius of the Designated Earth Station.
"Imaging Time" means the period of time during daylight hours during
which each High Resolution Satellite is within the two thousand (2,000)
kilometer communication range of the Designated Earth Station.
"Land Remote Sensing Policy Act" means The Land Remote Sensing Policy
Act of 1992 (15 U.S.C. Section 5601 et seq.), the regulations promulgated
thereunder (15 C.F.R. Part 960 et seq.) and any orders or policies announced or
implemented thereunder, as such may be amended or replaced from time to time.
"Marketing Materials" has the meaning set forth in Section 3(l).
"OFAC" means the Office of Foreign Assets Control of the United States
Department of the Treasury.
"Operational Date" shall mean the date on which ORBIMAGE declares
either the OrbView-3 or OrbView-4 satellite and related systems to be
operational, whichever occurs first; provided, however, that if ORBIMAGE has
declared the applicable satellite to be operational and the Designated Earth
Station has not successfully completed acceptance testing in accordance with the
procedures set forth in the Earth Station Agreement, the Operational Date shall
not be deemed to have occurred until the Designated Earth Station has
successfully completed said acceptance testing, subject to the conditions set
forth in Section 6(b) hereof.
"Operational Year" shall mean the twelve-month period commencing on the
Operational Date and each succeeding twelve-month period commencing on the
anniversary of the Operational Date during the term of this Agreement.
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"ORBIMAGE Intellectual Property" has the meaning set forth in Section
7(a).
"ORBIMAGE Reserved Satellite Capacity" has the meaning set forth in
section 3(b).
"ORBIMAGE Trademarks" shall mean (a) the trademarks and/or service
marks set forth on Schedule 1(b) hereto and (b) the graphic design marks in the
form shown on Schedule 1(b) hereto, whether or not registered with the competent
authorities of any country inside or outside of the Territory.
"OrbNet Archive" means ORBIMAGE's archive of Standard Products,
Value-Added Products and other imagery and derived products, including, without
limitation, OrbView Data and OrbView Images.
"OrbView Data" means (i) one-meter panchromatic and four-meter
multispectral data sets generated by the High-Resolution Satellites; and (ii)
two-meter panchromatic data sets generated by the OrbView-4 satellite; in each
case meeting the Performance Parameters.
"OrbView Image" means one (1) panchromatic or multispectral image
generated from OrbView Data, the size of which is 8km x 8km when acquired by the
High Resolution Satellite at nadir, and larger when acquired off nadir.
"Performance Parameters" means the performance parameters for the High
Resolution Satellites and the OrbView Data set forth on Schedule 1(c) hereto.
"Person" means an individual, a corporation, a partnership, an
association, a joint-stock company, a limited liability company, a trust, an
unincorporated organization, or a government or political subdivision thereof.
"Recorder Data" has the meaning set forth in section 3(c).
"SICorp." has the meaning set forth in Section 2(e).
"SICorp. Agreement" has the meaning set forth in Section 2(e).
"Standard Operating Procedures" has the meaning set forth in Section
3(a)(i).
"Standard Products" shall mean (a) OrbView Data, and (b) the following
products produced from OrbView Data: (i) Basic Data-Sets, (ii) Geo Corrected
Data-Sets, and (iii) Ortho Corrected Data-Sets; and any future products produced
from OrbView Data developed by ORBIMAGE in substitution or replacement of any of
the foregoing products. Items (b)(i) through (iii) above are more fully
described in Table 3-1 of Exhibit D to the Earth Station Agreement. In the event
that ORBIMAGE adds any additional standard products to the Product Generation
System (PGS) (as defined in Earth Station Agreement), DISTRIBUTOR shall have the
right to distribute said products on the terms
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and subject to the conditions of this Agreement, provided that the parties
mutually agree in writing to the compensation payable by DISTRIBUTOR for the
sale of such products.
"Start Up Expenses" means the following reasonable out-of-pocket
expenses incurred by DISTRIBUTOR in connection with its start-up activities
hereunder during the first twelve (12) months following DOC approval of this
Agreement as described in Section 10(d) hereof: the costs of hiring employees
and leasing office space and equipment, marketing expenses and other reasonable
start-up related expenses, but not including legal expenses incurred in
connection with this Agreement and the Earth Station Agreement.
"Subdistributor Agreement" has the meaning set forth in section
2(c)(i).
"Subdistributors" means the Persons designated in writing by
DISTRIBUTOR within 120 days of the date hereof and such additional Persons as
DISTRIBUTOR shall thereafter designate in writing from time to time, in each
case subject to ORBIMAGE's written consent, which shall not be unreasonably
withheld and then only if (i) such designation would cause ORBIMAGE to violate
the DOC License or (ii) such Person is an affiliate of an ORBIMAGE competitor.
The Subdistributors must be located in the Territory or in a non-exclusive
territory which at the time of designation has not been taken away from
DISTRIBUTOR pursuant to Section 2(a)(ii) hereof.
"Suggested Retail Price" means ORBIMAGE's written list of suggested
retail prices for Geo Corrected Data-Sets in effect from time to time, as posted
on ORBIMAGE's OrbNet web site.
[*CONFIDENTIAL TREATMENT REQUESTED.*]
"Suspension Period" has the meaning set forth in Section 8(b)(ii).
"Territory" means the countries set forth on Schedule 1(f) hereto.
"Third Party Distributor Agreement" has the meaning set forth in
Sections 2(a)(ii) and 2(c)(ii)(B).
[*CONFIDENTIAL TREATMENT REQUESTED.*]
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"U.S. Air Force Contract" has the meaning set forth in Section 5(c).
"U.S. National Security Customers" has the meaning set forth in Section
4(i).
"Value-Added Products" means any products derived in whole or in part
from Standard Products, including, without limitation, derivative works created
from OrbView Data, but does not include Standard Products.
"Value-Added Resellers" means the Persons designated in writing by
DISTRIBUTOR within 120 days of the date hereof and such additional Persons as
DISTRIBUTOR shall thereafter designate in writing from time to time, in each
case subject to ORBIMAGE's written consent, which shall not be unreasonably
withheld and then only if (i) such designation would cause ORBIMAGE to violate
the DOC License or (ii) such Person is an affiliate of an ORBIMAGE competitor.
The Value-Added Resellers must be located in the Territory or in a non-exclusive
territory which at the time of designation has not been taken away from
DISTRIBUTOR pursuant to Section 2(c)(ii)(B) hereof.
"Value-Added Reseller Agreement" has the meaning set forth in Section
2(c)(ii).
SECTION 2. APPOINTMENT OF DISTRIBUTOR
(a) Appointment. During the term hereof and subject to Sections 5, 7
and 14 hereof, ORBIMAGE hereby appoints DISTRIBUTOR as its:
(i) exclusive distributor in the Territory of (A) Standard
Products contained in the Distributor Archive and/or the OrbNet
Archive, and (B) Value-Added Products created by DISTRIBUTOR, its
Value-Added Resellers or ORBIMAGE from such Standard Products, for sale
to customers located in the Territory; and
(ii) non-exclusive distributor of (A) Standard Products
contained in the Distributor Archive and/or the OrbNet Archive and (B)
Value-Added Products created from such Standard Products, for sale to
customers located outside of the Territory, except that DISTRIBUTOR
shall not have any distribution rights in the countries set forth on
Schedule 2(a). Notwithstanding the foregoing, ORBIMAGE shall have the
right, on sixty (60) days prior written notice to
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DISTRIBUTOR, to limit or terminate the rights of the DISTRIBUTOR (and
any applicable Subdistributors) to distribute Standard Products or the
rights of DISTRIBUTOR to distribute Value-Added Products outside of the
Territory, or receive Recorder Data of any countries located outside of
the Territory, if it would violate or conflict with any agreements
proposed to be entered into by ORBIMAGE with any Person after the date
of this Agreement (each, a "Third Party Distributor Agreement"). If
within fifteen (15) days of DISTRIBUTOR's receipt of such notice,
DISTRIBUTOR provides ORBIMAGE with a copy of all customer agreements
then in force which were entered into prior to the date of ORBIMAGE's
notice (each, an "Existing Customer Agreement") which would be limited
or prohibited by the Third Party Distributor Agreement, then ORBIMAGE
shall ensure that the Third Party Distributor Agreement permits
DISTRIBUTOR and Subdistributor, as applicable, to fulfill the terms of
each such Existing Customer Agreement. Except for the Existing Customer
Agreements, DISTRIBUTOR's and the Subdistributor's right to distribute
Standard Products and/or Value-Added Products and/or receive Recorder
Data, as applicable, shall automatically terminate as set forth in said
notice upon the execution of the Third Party Distributor Agreement (but
in no event earlier than 60 days from the date on which DISTRIBUTOR
received said notice).
DISTRIBUTOR hereby accepts the foregoing appointment on the terms and
subject to the conditions of this Agreement.
(b) Value-Added Products. Subject to Section 2(a), including, without
limitation, the exclusivity and territorial limitations contained therein,
ORBIMAGE hereby grants DISTRIBUTOR the right and license to create and
distribute Value-Added Products using Standard Products contained in the
Distributor Archive and the OrbNet Archive. DISTRIBUTOR may license Value-Added
Products to end users for a perpetual or shorter term and on such other terms
and conditions which do not conflict with this Agreement as DISTRIBUTOR shall
determine from time to time in its sole discretion.
(c) Appointment of Subdistributors and Value-Added Resellers.
(i) Subdistributors. Subject to Section 2(a), including,
without limitation, the exclusivity and territorial limitations
contained therein, and Sections 5, 7 and 14, ORBIMAGE hereby grants
DISTRIBUTOR the right and license to grant to the Subdistributors a
sublicense to distribute Standard Products hereunder. DISTRIBUTOR shall
grant the foregoing sublicense to the Subdistributors pursuant to a
written agreement reasonably acceptable to ORBIMAGE which shall pass
through to the Subdistributors the terms and conditions of Sections
2(a), 2(d), 7, 12, 14(a) and 14(b) hereof, and such other terms and
conditions of this Agreement as ORBIMAGE shall reasonably determine are
required to be passed through to the Subdistributor in order for
ORBIMAGE to ensure compliance with the DOC License (a "Subdistributor
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Agreement"). ORBIMAGE agrees that the inclusion in the Subdistributor
Agreements of the text set forth in Exhibit 2(c)(i) hereto meets the
current requirements of the DOC License, subject to final DOC approval
thereof as described in Section 10(d) hereof. DISTRIBUTOR agrees that
the Subdistributors shall have no right to grant sublicenses to
distribute Standard Products.
(ii) Value-Added Resellers.
(A) During the term of this Agreement and subject to
Sections 5, 7 and 14 hereof, ORBIMAGE hereby grants
DISTRIBUTOR the right and license to grant to the Value-Added
Resellers a sublicense to create and distribute Value-Added
Products using Standard Products contained in the Distributor
Archive and the OrbNet Archive. In DISTRIBUTOR's discretion,
Value-Added Resellers may distribute such Value-Added Products
anywhere in the world except Japan, notwithstanding the
territorial restrictions applicable to DISTRIBUTOR set forth
in Section 2(a). If at a later date the terms of ORBIMAGE's
current agreement with its Japanese distributor are amended to
permit distribution of Value-Added Products by the Value-Added
Resellers in Japan, ORBIMAGE shall so notify DISTRIBUTROR and
this Section 2(c)(ii) shall be amended to permit such
distribution in Japan. DISTRIBUTOR shall grant the foregoing
sublicense to the Value-Added Resellers pursuant to a written
agreement reasonably acceptable to ORBIMAGE which shall pass
through to the Value-Added Resellers the terms and conditions
of Sections 7, 12, 14(a) and 14(b) hereof, and such other
terms and conditions of this Agreement as ORBIMAGE shall
reasonably determine are required to be passed through to the
Value-Added Reseller in order to ensure compliance with the
DOC License (a "Value-Added Reseller Agreement"). ORBIMAGE
agrees that the inclusion in the Value-Added Reseller
Agreements of the text set forth in Exhibit 2(c)(ii) hereto
meets the current requirements of the DOC License, subject to
final DOC approval thereof as described in Section 10(d)
hereof. The Value-Added Resellers may license Value-Added
Products to end users for a perpetual or shorter term and on
such other terms and conditions which do not conflict with
this Agreement as DISTRIBUTOR shall determine from time to
time in its sole discretion. DISTRIBUTOR agrees that the
Value-Added Resellers shall have no right to grant sublicenses
to create and distribute Value-Added Products.
(B) Notwithstanding Section 2(c)(ii)(A), ORBIMAGE
shall have the right, on sixty (60) days prior written notice
to DISTRIBUTOR, to limit or terminate the rights of the Value
Added Resellers who are located outside the Territory to
create and distribute Value-Added Products outside of the
Territory if it would violate or conflict with any
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agreements proposed to be entered into by ORBIMAGE with any
Person after the date of this Agreement (also, a "Third Party
Distributor Agreement"). If within fifteen (15) days of
DISTRIBUTOR's receipt of such notice, DISTRIBUTOR provides
ORBIMAGE with a copy of all of such Value-Added Resellers
customer agreements then in force which were entered into
prior to the date of ORBIMAGE's notice (also, an "Existing
Customer Agreement") which would be limited or prohibited by
the Third Party Distributor Agreement, then ORBIMAGE shall
ensure that the Third Party Distributor Agreement permits such
Value-Added Resellers to fulfill the terms of each such
Existing Customer Agreement. Except for the Existing Customer
Agreements, the rights of such Value-Added Resellers to create
and distribute Value-Added Products and/or receive Recorder
Data shall automatically terminate as set forth in said notice
upon the execution of the Third Party Distributor Agreement
(but in no event earlier than 60 days from the date on which
DISTRIBUTOR received said notice).
(d) End User Agreements. DISTRIBUTOR acknowledges and agrees that as a
condition of any sale of Standard Products to any customer hereunder (other than
to a Value-Added Reseller), DISTRIBUTOR shall require each such customer to
enter into a written or "shrink-wrap-style end-user license agreement containing
substantially the terms set forth in Exhibit 2(d) and such additional terms as
DISTRIBUTOR shall determine which are not inconsistent with the terms set forth
in Exhibit 2(d) hereto (an "End User Agreement"). DISTRIBUTOR shall be
responsible for translating the End User Agreement into the language of the
applicable customer.
(e) SICorp. Concurrently with the execution and delivery of this
Agreement, ORBIMAGE and DISTRIBUTOR's wholly-owned U.S. subsidiary, Spot Image
Corp. ("SICorp."), entered into an ORBIMAGE VAR Agreement of even date herewith
pursuant to which ORBIMAGE grants SICorp. the non-exclusive right to distribute
OrbView Data in the United States on terms no less favorable than those granted
to any other U.S. distributors from time to time during the term hereof (the
"SICorp. Agreement"). ORBIMAGE hereby agrees that during the term of this
Agreement, ORBIMAGE shall not terminate the SICorp. Agreement without
DISTRIBUTOR's prior written consent, except for breach thereof as permitted by
the SICorp. Agreement and then only after the expiration of any applicable cure
periods set forth therein.
SECTION 3. RIGHTS AND OBLIGATIONS OF DISTRIBUTOR
(a) Reception of OrbView Data.
(i) Exclusive Reception Rights; Standard Operating Procedures.
Subject to Sections 5 and 14, DISTRIBUTOR shall have the exclusive
right and license in the Territory to receive OrbView Data via downlink
from the High
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Resolution Satellites, for distribution pursuant to this Agreement.
DISTRIBUTOR shall make all requests for OrbView Data in accordance with
ORBIMAGE's Standard Operating Procedures to be provided by ORBIMAGE
prior to the launch of the first High-Resolution Satellite, as such
procedures may be amended by ORBIMAGE from time to time ("Standard
Operating Procedures").
(ii) Sublicenses of Direct Downlink Rights to Customers.
DISTRIBUTOR shall have the right to grant its customers a sublicense to
directly receive OrbView Data in the Territory via satellite downlink
from the High Resolution Satellites, subject, however, to ORBIMAGE's
prior approval of each such customer, which shall not be unreasonably
withheld. All costs and expenses relating to direct downlink
sublicenses will be the responsibility of DISTRIBUTOR. All downlinking
of OrbView Data to a customer earth station shall be included in the
calculation of DISTRIBUTOR's use of its Reserved Satellite Capacity (as
defined below). Each customer granted direct downlink rights pursuant
to this Section 3(a)(ii) shall be required to enter into an written End
User Agreement prior to receiving any OrbView Data, which agreement
shall contain such other terms and conditions of this Agreement as
ORBIMAGE shall reasonably determine are required to be passed through
to each such customer in order to ensure compliance with the DOC
License. Furthermore, DISTRIBUTOR shall pay ORBIMAGE the fees set forth
on Schedule 8(a) hereto for all OrbView Data downlinked to any such
customer earth stations, which amounts shall be credited against the
Guaranteed Annual Minimum.
(b) Reserved Satellite Capacity. Subject to Section 5 below, ORBIMAGE
shall reserve not less than [*CONFIDENTIAL TREATMENT REQUESTED*] of each High
Resolution Satellite's Imaging Time for DISTRIBUTOR's use during each
Operational Year, in the manner set forth in Schedule 3(b) hereto ("DISTRIBUTOR
Reserved Satellite Capacity"). The remaining [*CONFIDENTIAL TREATMENT
REQUESTED*] of each High Resolution Satellite's Imaging Time shall be reserved
for ORBIMAGE's use, subject to Schedule 3(b) hereto ("ORBIMAGE Reserved
Satellite Capacity"). Notwithstanding the foregoing, ORBIMAGE shall make
available the ORBIMAGE Reserved Satellite Capacity for use by DISTRIBUTOR to the
extent not required by ORBIMAGE for other purposes and ORBIMAGE shall have the
right to use DISTRIBUTOR Reserved Satellite Capacity to the extent not utilized
by DISTRIBUTOR.
(c) Recorder Data of Areas Outside the Imaging Radius. DISTRIBUTOR
shall have the right to receive OrbView Data of areas outside of the Imaging
Radius on a non-priority basis, subject to the availability of High-Resolution
Satellite capacity, for distribution inside and outside of the Territory as
permitted under this Agreement ("Recorder Data"), subject to ORBIMAGE's right to
limit or terminate the rights of DISTRIBUTOR to receive Recorder Data as set
forth in Section 2(a)(ii). At DISTRIBUTOR's request, ORBIMAGE shall inform
DISTRIBUTOR of the estimated
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delivery time for Recorder Data. DISTRIBUTOR shall pay ORBIMAGE the tasking fee
a set forth on Schedule 8(a) for each OrbView Image requested under this Section
3(c). Recorder Data shall be downlinked to an earth station selected by ORBIMAGE
and shall be promptly forwarded to DISTRIBUTOR. If ORBIMAGE elects to downlink
the Recorder Data to an earth station other than the Designated Earth Station,
DISTRIBUTOR may request that ORBIMAGE downlink such data to the Designated Earth
Station. If ORBIMAGE agrees to such request, DISTRIBUTOR shall pay ORBIMAGE the
downlink fee set forth in Schedule 8(a) for each OrbView Image downlinked to the
Designated Earth Station. All satellite time utilized in downlinking such
Recorder Data to the Designated Earth Station shall be included in the
calculation of the DISTRIBUTOR Reserved Satellite Capacity. All requests for
Recorder Data shall be made in accordance with ORBIMAGE's Standard Operating
Procedures.
(d) Receipt of ORBIMAGE and Third-Party OrbView Data. DISTRIBUTOR
agrees that during the term of this Agreement, ORBIMAGE shall have the right to
downlink OrbView Data belonging to ORBIMAGE or third parties to the Designated
Earth Station, and DISTRIBUTOR further agrees that it shall promptly forward
such data to ORBIMAGE in such form and in such manner as ORBIMAGE requests.
Unless otherwise prohibited by ORBIMAGE's contractual arrangements with another
ORBIMAGE distributor or customer, DISTRIBUTOR shall have the right to include
such OrbView Data in the Distributor Archive free of charge, in which case
DISTRIBUTOR shall be responsible for the expense of forwarding copies of such
data to ORBIMAGE. If DISTRIBUTOR is prohibited from including such OrbView Data
in the Distributor Archive, ORBIMAGE shall pay DISTRIBUTOR the reception fee set
forth on Schedule 8(a) hereto for each OrbView Image that DISTRIBUTOR is unable
to include in the Distributor Archive, and DISTRIBUTOR shall be responsible for
the expense of forwarding copies of such OrbView Data to ORBIMAGE.
(e) Preferred Supplier; Non-Competition.
(i) Preferred Supplier. As of the Operational Date,
DISTRIBUTOR agrees that ORBIMAGE shall be DISTRIBUTOR's
preferred supplier of (A) panchromatic satellite imagery
with resolution equal to or better than two (2) meters
and (B) multispectral satellite imagery with resolution
equal to or better than four (4) meters, in the Territory
and in the countries outside of the Territory in which
DISTRIBUTOR continues to have non-exclusive distribution
rights hereunder. DISTRIBUTOR shall be deemed to have
fulfilled its obligations under this Section 3(e) if,
before purchasing any such satellite imagery from any
other provider, DISTRIBUTOR shall have given ORBIMAGE the
reasonable opportunity to sell the same to DISTRIBUTOR,
it being understood that DISTRIBUTOR shall be free to
exercise its
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commercially reasonable discretion in determining whether
to purchase the same from ORBIMAGE or such other
provider.
(ii) [*CONFIDENTIAL TREATMENT REQUESTED*]
(f) General Obligations as a Distributor.
(i) DISTRIBUTOR agrees that all of its sales of Standard
Products and Value-Added Products under this Agreement shall be made at
DISTRIBUTOR's sole expense, for its own account.
(ii) Although ORBIMAGE will from time to time publish the
Suggested Retail Price, such price is merely a suggested price and
DISTRIBUTOR shall be free to establish the actual prices for its sale
of Standard Products and Value-Added Products. In addition, DISTRIBUTOR
shall be free to establish the sublicense fees payable to DISTRIBUTOR
by the Subdistributors and Value-Added Resellers.
(iii) DISTRIBUTOR shall use commercially reasonable efforts to
market, promote and distribute the Standard Products and Value-Added
Products to customers inside and outside of the Territory in accordance
with the terms and conditions of this Agreement.
(g) Designated Earth Station. During the term of this Agreement,
DISTRIBUTOR shall be solely responsible for the maintenance and operation of the
Designated Earth Station, at its expense, subject to the warranty(ies) contained
in the Earth Station Agreement and any system support services agreements
entered into by DISTRIBUTOR pursuant to the Earth Station Agreement. DISTRIBUTOR
shall also be responsible, at its expense, for establishing and operating the
communications links necessary for system management purposes between the
Designated Earth Station and the ORBIMAGE control center located in the United
States designated by ORBIMAGE. DISTRIBUTOR shall use commercially reasonable
efforts to obtain and maintain during
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the term of this Agreement all approvals or licenses of all applicable
governmental authorities within the Territory necessary to construct, operate
and maintain the Designated Earth Station and all other approvals or licenses of
any other applicable governmental authorities necessary to otherwise perform its
obligations under this Agreement. DISTRIBUTOR shall have the right, at its sole
risk and expense, to move the Designated Earth Station to a site within fifty
(50) kilometers of the site at which the Designated Ground Station is located at
the time the earth station modification is completed pursuant to the Earth
Station Agreement. DISTRIBUTOR shall exercise such right by at least thirty (30)
days prior written notice to ORBIMAGE. During the relocation period and until
the Designated Ground Station is fully operational and able to receive and
process OrbView Data, DISTRIBUTOR's payment obligations under this Agreement
shall remain in full force and effect, including, without limitation, the
obligation to pay the Guaranteed Annual Minimum, subject to any adjustments to
the Guaranteed Annual Minimum required pursuant to Section 9(b).
(h) Copies of OrbView Data. In order to ensure that ORBIMAGE can comply
with the requirements of the DOC License, DISTRIBUTOR shall generate copies of
all OrbView Data directly downlinked to the Designated Earth Station or
authorized third party earth stations hereunder within ten (10) days of
reception, and shall promptly forward such copies to ORBIMAGE at its own
expense, in such manner as ORBIMAGE reasonably requests.
(i) DOC License Sales.
(i) Certain Sales to Foreign Governments. The DOC License
requires ORBIMAGE to make available to the government of any country
unenhanced OrbView Data concerning the territory under the jurisdiction
of such government which has been imaged by ORBIMAGE as soon as such
data is available, on reasonable cost terms and conditions, if
requested by the government of such country (a "DOC License Sale"). In
the event that a government requests to purchase any unenhanced
Distributor Data of any territory under the jurisdiction of such
government, ORBIMAGE shall refer the government to DISTRIBUTOR, and
DISTRIBUTOR shall sell such data to the government on reasonable cost
terms and conditions. If such government is unwilling to purchase such
data from DISTRIBUTOR and instead requests that ORBIMAGE sell it such
data , ORBIMAGE may sell such data to such government and ORBIMAGE
shall pay DISTRIBUTOR the fees set forth on Schedule 8(a) hereto.
(ii) Sales to U.S. Department of Interior. In the event that a
sale to the U.S. Department of Interior of any Distributor Data is
required by the DOC License (also, a "DOC License Sale"), ORBIMAGE
shall pay DISTRIBUTOR the fees set forth on Schedule 8(a) hereto for
the initial sale of such data to the Department of Interior, and all
subsequent sales of such data by the Department of Interior. ORBIMAGE
hereby agrees that the terms of any sales of such data shall be made on
a non-discriminatory basis. DISTRIBUTOR hereby acknowledges
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that sales of such data by the U.S. Department of Interior to Persons
in the Territory shall not be deemed to be a breach of DISTRIBUTOR's
exclusive distribution rights in the Territory set forth in Section
2(a)(i) hereof as long as ORBIMAGE pays the fees required by this
Section 3(i)(ii).
(j) Non-Solicitation. DISTRIBUTOR hereby agrees that during
the term of this Agreement and for a six (6) month period thereafter, it shall
not directly recruit, solicit or induce any employees of ORBIMAGE or Orbital
Sciences Corporation or any of their affiliated companies listed in Schedule
3(j) hereto (for purposes of this Section 3(j), individually and collectively,
"ORBIMAGE") to become employees of DISTRIBUTOR. This Section 3(j) shall not
prohibit DISTRIBUTOR from hiring (A) ORBIMAGE employees who have responded to
DISTRIBUTOR employment announcements in trade or other publications, or (B)
ORBIMAGE employees who have contacted DISTRIBUTOR concerning employment without
any direct solicitation by DISTRIBUTOR.
(k) Sales from Distributor Archive After Termination. After the
expiration of the term of this Agreement, or if this Agreement is terminated not
due to DISTRIBUTOR's breach, DISTRIBUTOR shall have the non-exclusive right to
continue to sell Standard Products and Value-Added Products contained in the
Distributor Archive on the same terms and conditions of this Agreement
applicable to the sale of Standard Products and Value-Added Products, and this
Agreement shall be amended accordingly.
(l) Approval of Marketing Materials. DISTRIBUTOR shall deliver to
ORBIMAGE for its prior approval, which shall not be unreasonably withheld,
copies of all marketing and promotional materials which DISTRIBUTOR proposes to
use from time to time in connection with the distribution and sale of Standard
Products and Value-Added Products hereunder, and all changes and revisions
thereto ("Marketing Materials"). ORBIMAGE shall be deemed to have approved any
Marketing Materials if it has not objected to such materials within thirty (30)
days after its receipt thereof. All Marketing Materials shall comply with the
requirements of this Agreement, including, without limitation, Section 7.
(m) Follow-On Systems. DISTRIBUTOR shall have a right of first refusal
to become a distributor in the Territory of satellite imagery generated by any
follow-on systems to the High Resolution Satellites. ORBIMAGE shall provide
DISTRIBUTOR with written notice if it receives a bona fide offer from a third
party to act as a distributor for such a follow-on system, which notice shall
contain the terms and conditions of the offer. DISTRIBUTOR shall have thirty
(30) days from the receipt of said notice to accept or decline such offer on the
same terms and conditions of the offer. If DISTRIBUTOR accepts such offer,
ORBIMAGE shall enter into a written distributorship agreement with DISTRIBUTOR
on the same terms and conditions of the offer. If DISTRIBUTOR declines the
offer, ORBIMAGE shall have the right to enter into a distributorship agreement
with such third party on the same terms and conditions of the
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offer. The provisions of this Section 3(m) shall apply if ORBIMAGE does
not enter into such distributorship agreement as provided herein.
SECTION 4. RIGHTS AND OBLIGATIONS OF ORBIMAGE
(a) Provision of OrbView Data. Subject to Sections 2(a)(ii), 4(c), 5
and 14, ORBIMAGE shall provide DISTRIBUTOR with OrbView Data as requested by
DISTRIBUTOR pursuant to Section 3 hereof.
(b) Agreement Not to Appoint Exclusive Distributor or License Other
Earth Stations in the Territory.
(i) During the term hereof, ORBIMAGE shall not (A) appoint
another distributor or subdistributor in the Territory
of Standard Products of any area of the world, (B)
solicit sales, sell or otherwise distribute in the
Territory Standard Products or Value-Added Products
(whether or not created by ORBIMAGE) of any area of the
world, (C) permit its other distributors and licensees
to solicit sales, sell or otherwise distribute in the
Territory Standard Products of any area of the world, or
(D) appoint, or permit its other distributors and
licensees to appoint, any value-added resellers of
Value-Added Products who are located in the Territory,
except that (X) ORBIMAGE may make unsolicited sales in
the Territory as permitted by Section 3(i)(i), 4(d) and
5(b), (Y) the Department of Interior may make sales in
the Territory as permitted by Section 3(i)(ii), and (Z)
US National Security Customers may share Standard
Products and Value-Added Products with U.S. allies
located in the Territory as permitted by Section 4(i).
Notwithstanding the foregoing, DISTRIBUTOR acknowledges
and agrees that value-added resellers located outside of
the Territory appointed by ORBIMAGE or other ORBIMAGE
distributors may sell Value-Added Products created in
whole or in part from products contained in the OrbView
Archive to customers located inside and outside of the
Territory, in each case for internal use by such
customers or for direct or indirect resale by such
customers inside and/or outside of the Territory.
DISTRIBUTOR agrees that the sale of such Value-Added
Products in the Territory shall not be considered a
breach of Section 2(a)(i) or this Section 4(b)(i),
provided that ORBIMAGE pays DISTRIBUTOR the fees set
forth
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ORBITAL IMAGING CORPORATION
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on Schedule 8(a) on any sales by such value-added
resellers in the Territory of Value-Added Products
created in whole or in part from Distributor Data.
(ii) Subject to Section 5(a) below, during the term hereof
ORBIMAGE shall not downlink any OrbView Data to an earth
station located in the Territory, nor license any Person
to receive OrbView Data at an earth station located in
the Territory, without DISTRIBUTOR's prior written
consent.
(iii) Except as permitted by Sections 3(i)(i), 4(d) and 5(b),
in the event that a customer located in the Territory
requests to purchase any OrbView Data of any area of the
world, or any products made or created therefrom
(whether in the form of Standard Products or Value-Added
Products), ORBIMAGE shall refer such customer to
DISTRIBUTOR. If a customer located in the Territory
attempts to circumvent DISTRIBUTOR's territorial
exclusivity in the Territory by purchasing Standard
Products and/or Value-Added Products from ORBIMAGE
outside of the Territory, ORBIMAGE and DISTRIBUTOR shall
meet to reach a solution to such circumvention in good
faith.
(c) Limitations on Obligations. Subject to Section 9(b), ORBIMAGE's
obligations under this Agreement are limited by, and ORBIMAGE shall have the
right to curtail or terminate the transmission of OrbView Data, or terminate
this Agreement as permitted by Section 10(i), to the extent required to do so by
the requirements of the DOC License or the Land Remote Sensing Policy Act.
(d) Certain Internet Sales from the OrbNet Archive. DISTRIBUTOR
acknowledges that ORBIMAGE sells Standard Products and Value-Added Products from
the OrbNet Archive through the internet to customers located world-wide and
agrees that any such sales to customers located in the Territory shall not be
deemed to be a breach of Section 2(a)(i), provided that such sales are made in
compliance with the other provisions of this Section 4(d). ORBIMAGE and
DISTRIBUTOR will use commercially reasonable efforts to develop an internet link
that will transfer customers located in the Territory who access the OrbNet
Archive via the internet to a DISTRIBUTOR internet site. Notwithstanding the
foregoing, if ORBIMAGE and DISTRIBUTOR are unable to implement said internet
link, any sales by ORBIMAGE of such products via the internet to customers
located in the Territory shall not be considered a breach of the DISTRIBUTOR's
exclusive distribution rights set forth in Section 2(a)(i) hereof, provided that
ORBIMAGE pays DISTRIBUTOR the fee set forth on Schedule 8(a) hereto on each such
sale. In addition, if ORBIMAGE and DISTRIBUTOR implement said internet link, any
inadvertent sales by ORBIMAGE of such products via the internet to customers
located in the Territory shall not be considered a breach of the DISTRIBUTOR's
exclusive distribution rights if ORBIMAGE pays DISTRIBUTOR the
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fee set forth on Schedule 8(a) hereto on each such sale. For purposes of this
Section 4(d), a sale shall be deemed to be "inadvertent" if it is made in good
faith in the belief that the relevant customer is not located in the Territory.
(e) Sales of Certain Imagery Outside of the Territory. During the term
of this Agreement, ORBIMAGE shall pay DISTRIBUTOR the fees set forth on Schedule
8(a) for all sales outside of the Territory by ORBIMAGE or any of its other
distributors of Distributor Data.
(f) Maintenance of Government Approvals and Permits. During the term of
this Agreement, ORBIMAGE shall use commercially reasonable efforts to obtain and
maintain all approvals or licenses of all applicable governmental authorities
necessary to construct, deploy, operate and maintain the High Resolution
Satellites and all other approvals or licenses of any other applicable
governmental authorities necessary to otherwise perform its obligations under
this Agreement.
(g) Marketing Assistance. ORBIMAGE will provide DISTRIBUTOR with copies
of ORBIMAGE marketing materials selected by ORBIMAGE for use by DISTRIBUTOR in
marketing and distributing Standard Products and Value-Added Products hereunder.
ORBIMAGE will provide a reasonable quantity of such materials free of charge,
and shall provide additional materials at DISTRIBUTOR's expense. ORBIMAGE shall
also provide DISTRIBUTOR with a reasonable number of OrbView Images each
Operational Year during the term free of charge solely for marketing purposes.
In addition, at DISTRIBUTOR's request, ORBIMAGE shall provide DISTRIBUTOR with
such reasonable marketing assistance as it customarily provides to its other
distributors.
(h) Non-Solicitation. ORBIMAGE hereby agrees that during the term of
this Agreement and for a six month (6) period thereafter, it shall not directly
recruit, solicit or induce any employees of DISTRIBUTOR or any of its affiliated
companies listed on Schedule 4(h) hereto (for purposes of this Section 4(h),
individually and collectively, "DISTRIBUTOR") to become employees of ORBIMAGE.
This Section 4(h) shall not prohibit ORBIMAGE from hiring (A) DISTRIBUTOR
employees who have responded to ORBIMAGE employment announcements in trade or
other publications, or (B) DISTRIBUTOR's employees who have contacted ORBIMAGE
concerning employment without any direct solicitation by ORBIMAGE.
(i) U.S. National Security Customers. From time to time ORBIMAGE sells
Standard Products and Value-Added Products to U.S. governmental military,
defense and intelligence customers ("U.S. National Security Customers") pursuant
to written agreements which may permit such customers to share such products
with U.S. allies located in the Territory for non-commercial military, defense
and intelligence purposes. ORBIMAGE shall pay DISTRIBUTOR the fees set forth on
Schedule 8(a) hereto in connection with the sale and sharing of any Distributor
Data to or by such U.S. National Security Customers.
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(j) Imagery Acquisition Strategy. ORBIMAGE will consult at least
annually with DISTRIBUTOR to solicit DISTRIBUTOR's suggestions for an imagery
acquisition strategy inside and outside of the Territory. ORBIMAGE will consider
DISTRIBUTOR's suggestions in good faith, but shall have no obligation to
implement such suggestions.
(k) [*CONFIDENTIAL TREATMENT REQUESTED*]
(l) Insurance. ORBIMAGE shall use commercially reasonable
efforts to assist DISTRIBUTOR in obtaining launch, deployment and on-orbit
failure insurance for the High Resolution Satellites, not to exceed fifteen (15)
person days of assistance. DISTRIBUTOR shall be responsible for all of
ORBIMAGE's out-of-pocket expenses in connection with such assistance, including,
without limitation, travel and room and board.
(m) Suggested Retail Price.
(i) ORBIMAGE agrees that it shall maintain the
Suggested Retail Price at a level that accurately reflects
applicable market conditions for Geo Corrected Data-Sets in
effect from time to time.
(ii) ORBIMAGE agrees that it shall not sell Standard
Products below the Suggested Retail Price except in good
faith. "Good faith" sales below the Suggested Retail Price
shall include, without limitation, sales involving volume and
loss leader discounts and any other sales below the Suggested
Retail Price that could reasonably be anticipated to result in
future sales or increased market share sufficient to
compensate for the income lost as a result of such sales below
the Suggested Retail Price. Subject to Section 9(d), nothing
in this Agreement shall limit or restrict ORBIMAGE's ability
to increase or decrease the Suggested Retail Price from time
to time in its sole discretion.
(n) Algeria, Tunisia, Morocco and Ukraine. DISTRIBUTOR has
non-exclusive distribution rights in Algeria, Tunisia, Morocco and Ukraine
pursuant to Section 2(a)(ii) hereof. ORBIMAGE agrees that it shall pay
DISTRIBUTOR the fees set forth on Schedule 8(a) hereto on all sales of Standard
Products and Value-Added Products (whether made by ORBIMAGE or another
distributor) to customers located in Algeria, Tunisia, Morocco or Ukraine, as
the case may be. Notwithstanding the foregoing, ORBIMAGE's obligation to pay
said fees shall terminate if ORBIMAGE elects to appoint an exclusive distributor
in Algeria, Tunisia, Morocco and/or Ukraine, as the case may be, pursuant to the
termination mechanism set forth in Section 2(a)(ii). After any such termination,
ORBIMAGE shall thereafter pay DISTRIBUTOR the fees required by Section 4(e) on
all sales of Distributor Data to customers located in Algeria, Tunisia, Morocco
and/or Ukraine. Any such exclusive distributors shall have the right to
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ORBITAL IMAGING CORPORATION
CONFIDENTIAL AND PROPRIETARY INFORMATION
19
receive OrbView Data by direct satellite downlink to an earth station located in
Algeria, Tunisia, Morocco and/or Ukraine, as the case may be.
(o) Performance Updates. ORBIMAGE shall provide DISTRIBUTOR
with periodic updates of any material changes of which ORBIMAGE becomes aware in
the performance specifications of the High Resolution Satellites which directly
affect the GEM or the performance specifications of the Designated Earth Station
set forth in the Earth Station Agreement, it being agreed that this Section 4(o)
shall not give ORBIMAGE the right to amend or otherwise change the GEM or the
performance specifications for the Designated Earth Station set forth in the
Earth Station Agreement.
SECTION 5. U.S. AND FOREIGN NATIONAL SECURITY CUSTOMERS
(a) U.S. National Security Customers. Nothing in this Agreement shall
prevent or restrict ORBIMAGE from granting U.S. National Security Customers the
right (i) to task the High Resolution Satellites on a priority basis for imaging
purposes when they pass over the Territory, and (ii) to receive OrbView Data of
the Territory or any other area of the world for non-commercial military,
defense and intelligence purposes via direct satellite downlink at an earth
station located inside or outside of the Territory, or by any other method of
delivery. In the event of any such U.S. National Security Customer priority
tasking request over the Territory, ORBIMAGE shall first use the ORBIMAGE
Reserved Satellite Capacity to fulfill such request (even if this entails
preemption of ORBIMAGE's intended use thereof for itself or its other
distributors and customers). If such priority tasking request requires the use
of satellite capacity in excess of the ORBIMAGE Reserved Satellite Capacity,
ORBIMAGE shall have the right to use the DISTRIBUTOR Reserved Satellite Capacity
to fulfill such request, in which case the provisions of Section 9(b) shall
apply.
(b) National Security Customers in the Territory. Notwithstanding
Section 2(a)(i), subject to the payment terms set forth in Schedule 8(a) hereto,
ORBIMAGE shall have the right to sell Standard Products and Value-Added Products
of the Territory or any other area of the world (through direct downlink or
otherwise) to governmental military, defense and intelligence customers located
in the Territory for non-commercial for non-commercial military, defense and
intelligence purposes, provided that ORBIMAGE (i) shall not solicit any such
sales, and (ii) shall encourage such customers to purchase such products from
DISTRIBUTOR.
(c) U.S. Air Force Contract. DISTRIBUTOR acknowledges that it is aware
of ORBIMAGE's obligations to deliver imagery from the OrbView-4 satellite to the
U.S. Air Force on a first priority basis under an existing contract with the
U.S. Air Force (the "U.S. Air Force Contract"), and that under certain
circumstances U.S. Air Force requests under such contract could preempt
DISTRIBUTOR's and ORBIMAGE's rights to utilize all or any portion of their
respective Reserved Satellite Capacity. In the event of any priority tasking
request of the Territory under the U.S. Air Force Contract, ORBIMAGE
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ORBITAL IMAGING CORPORATION
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shall first use the ORBIMAGE Reserved Satellite Capacity to fulfill such request
(even if this entails preemption of ORBIMAGE's intended use thereof for itself
or its other distributors and customers). If such priority tasking request
requires the use of satellite capacity in excess of the ORBIMAGE Reserved
Satellite Capacity, ORBIMAGE shall have the right to use the DISTRIBUTOR
Reserved Satellite Capacity to fulfill such request, in which case the
provisions of Section 9(b) shall apply.
(d) U.S. Government National Security Requests. DISTRIBUTOR
acknowledges that under the DOC License the U.S. Government has the authority to
require ORBIMAGE to limit collection of OrbView Data and/or distribution by the
High Resolution Satellites and related systems during periods when U.S. national
security or international obligations and/or foreign policies may be
compromised. If the U.S. Government limits DISTRIBUTOR's ability to utilize the
DISTRIBUTOR Reserved Satellite Capacity pursuant to the DOC License, ORBIMAGE
shall use the ORBIMAGE Reserved Satellite Capacity to fulfill DISTRIBUTOR's
imaging request (even if this entails preemption of ORBIMAGE's intended use
thereof for itself or its other distributors and customers), to the extent
permitted by the U.S. Government. If such U.S. Government limitation limits
DISTRIBUTOR from utilizing the DISTRIBUTOR Reserved Satellite Capacity in a
manner that is not cured by ORBIMAGE utilizing the ORBIMAGE Reserved Satellite
Capacity for the benefit of DISTRIBUTOR as described in the preceding sentence,
the provisions of Section 9(b) shall apply.
SECTION 6. DESIGNATED EARTH STATION
(a) Earth Station Agreement. Concurrently with the execution and
delivery of this Agreement, ORBIMAGE and DISTRIBUTOR have entered into a Ground
Station Contract of even date herewith pursuant to which ORBIMAGE shall upgrade
the Designated Earth Station so that such earth station is capable of receiving,
archiving and processing OrbView Data (the "Earth Station Agreement").
(b) Acceptance Testing. ORBIMAGE shall notify DISTRIBUTOR in writing
that either the OrbView-3 or OrbView-4 satellite is operational, whichever
occurs first, and that it is ready to begin acceptance testing for the
Designated Earth Station in accordance with the procedures set forth in the
Earth Station Agreement. Acceptance testing shall be deemed to have been
satisfactorily completed and the Operational Date shall be deemed to have
occurred if ORBIMAGE is unable to begin acceptance testing within thirty (30)
days of DISTRIBUTOR's receipt of said notice solely due to the fault of
DISTRIBUTOR. If acceptance testing is delayed for reasons not solely due to the
fault of DISTRIBUTOR, the parties shall cooperate and shall use commercially
reasonable efforts to commence acceptance testing as soon as possible.
SECTION 7. INTELLECTUAL PROPERTY RIGHTS
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ORBITAL IMAGING CORPORATION
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(a) Ownership of OrbView Data and Standard Products and Value-Added
Products Created by ORBIMAGE. DISTRIBUTOR agrees that (i) ORBIMAGE has sole and
exclusive title to and ownership of all copyrights, trade secrets, patents, and
other intellectual property rights in and to (A) the OrbView Data, (B) Standard
Products contained in the OrbNet Archive, (C) Value-Added Products created by
ORBIMAGE contained in the OrbNet Archive, and (D) any graphic or other
representations of the foregoing (individually and collectively, "ORBIMAGE
Intellectual Property"), and DISTRIBUTOR shall not have any rights of ownership
therein, (ii) ORBIMAGE's copyright in OrbView Data shall arise upon the first
fixation and creation of OrbView Data, which DISTRIBUTOR agrees shall occur upon
generation thereof by the High-Resolution Satellites, and (iii) to the maximum
extent permitted by applicable law, all issues, disputes and claims between
ORBIMAGE and DISTRIBUTOR arising out of or relating to copyrights, trade
secrets, patents, and other intellectual property rights in ORBIMAGE
Intellectual Property shall be governed by the laws of the United States of
America and/or the Commonwealth of Virginia, as applicable. DISTRIBUTOR hereby
acknowledges that the national origin of all ORBIMAGE Intellectual Property,
shall be deemed to be the United States of America.
(b) Copyright License; Ownership of Value-Added Products Created by
DISTRIBUTOR.
(i) Copyright License. During the term hereof and subject to
the territorial limitations set forth in Section 2(a) of
this Agreement, ORBIMAGE hereby grants to DISTRIBUTOR a
non-exclusive, royalty-free, fully paid-up license to
use, reproduce, distribute, perform and display publicly
the OrbView Data and/or any graphic or other
representations (whether in the form of Standard
Products or Value-Added Products), and to make
derivative works thereof, on the terms and conditions
set forth in this Agreement. ORBIMAGE shall not own the
media on which Standard Products or Value-Added Products
are recorded. DISTRIBUTOR shall own the media on which
OrbView Data is recorded by DISTRIBUTOR.
(ii) Ownership of Value-Added Products Created by
DISTRIBUTOR. ORBIMAGE agrees that DISTRIBUTOR has sole
and exclusive title to and ownership of all copyrights,
trade secrets, patents, and other intellectual property
rights in the Value-Added Products it creates hereunder
based upon Standard Products or Value-Added Products,
and in any graphic or other representations thereof,
subject to ORBIMAGE's or its other distributor's and
licensee's copyright and other intellectual property
rights in the preexisting (i) OrbView Data, (ii)
Standard Products and/or (iii) Value-Added Products, as
applicable, which DISTRIBUTOR incorporates in such
Value-Added Products created by DISTRIBUTOR.
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(c) Non-Circumvention. DISTRIBUTOR agrees that ORBIMAGE may, at any
time during the term of this Agreement, adopt technological systems for the
purpose of preventing or reducing unauthorized reproduction of the OrbView Data,
including, but not limited to, inclusion of a "digital watermark" system.
DISTRIBUTOR agrees not to circumvent such systems or to assist or encourage
others to circumvent such systems.
(d) Trademark Ownership and License.
(i) Ownership. DISTRIBUTOR agrees that ORBIMAGE has sole and
exclusive title to the ORBIMAGE Trademarks, and that DISTRIBUTOR shall
not have any rights of ownership therein. DISTRIBUTOR further agrees
that all good will associated with the use of the ORBIMAGE Trademarks,
whether developed by ORBIMAGE, DISTRIBUTOR or ORBIMAGE's other
distributors and licensees, shall be owned by, and shall inure to the
benefit of, ORBIMAGE. Except as provided in Section 3(k), upon the
expiration or termination of this Agreement, DISTRIBUTOR shall
immediately cease all display, advertising and use of all ORBIMAGE
Trademarks, trade names, logos and designations and will not thereafter
use, advertise or display any trademark, trade name, logo or
designation which is, or any part of which is, similar to or confusing
with any ORBIMAGE Trademarks, trade names, logos and designations.
(ii) License. During the term hereof and subject to the
territorial limitations set forth in Section 2(a) of this Agreement,
ORBIMAGE hereby grants to DISTRIBUTOR a non-exclusive, royalty-free,
fully paid-up license to use the ORBIMAGE Trademarks in connection with
the advertising, promotion and sale of OrbView Data and graphic
representations thereof, including, without limitation, Standard
Products, Value-Added Products and OrbView Images, on the terms and
conditions set forth in this Agreement. DISTRIBUTOR further agrees that
(i) ORBIMAGE may, in its sole discretion, require that one or more of
the ORBIMAGE Trademarks be reproduced or "burned in" on all copies of
Standard Products produced by DISTRIBUTOR, and (ii) ORBIMAGE may, in
its sole discretion, register the ORBIMAGE Trademarks in any country or
jurisdiction within the Territory, and that DISTRIBUTOR shall cooperate
with ORBIMAGE in such registration to the extent reasonable. ORBIMAGE
shall reimburse DISTRIBUTOR's reasonable out-of-pocket expenses
incurred in connection therewith.
(e) Legend.
(i) Standard Products and Value-Added Products Created by
ORBIMAGE. DISTRIBUTOR shall (A) print in a noticeable fashion the
following notice on all copies received by it hereunder of (1) OrbView
Data, (2) Standard Products, and (3) Value-Added Products created by
ORBIMAGE, and (B) require its customers to agree in accordance with
Section 2(d) hereof that they
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will print in a noticeable fashion the following notice on all copies
of such Standard Products and Value-Added Products generated by such
customers from Standard Products and Value-Added Products provided to
them in data form:
"(C) [year of reception] Orbital Imaging Corporation. All
Rights Reserved."
(ii) Other Value-Added Products. DISTRIBUTOR shall (A) print
in a noticeable fashion the following notice on all copies of (i)
Value-Added Products it creates hereunder, and (ii) Value-Added
Products it obtains from the OrbNet Archive which were created by other
ORBIMAGE distributors and licensees, and (B) require its customers to
agree that they will print in a noticeable fashion the following notice
on all copies of Value-Added Products generated by such customers from
such Value-Added Products provided to them in data form:
"Produced under license from, and contains copyrighted
material of, Orbital Imaging Corporation. All Rights
Reserved."
(f) Obligation to Protect. DISTRIBUTOR agrees to use commercially
reasonable efforts to protect ORBIMAGE's proprietary rights in (i) the Standard
Products and Value-Added Products, (ii) the ORBIMAGE Trademarks, and (iii) any
other ORBIMAGE intellectual property rights related thereto, in a manner
consistent with this Section 7, and to cooperate in ORBIMAGE's reasonable
efforts to protect such proprietary rights. DISTRIBUTOR agrees to promptly
notify ORBIMAGE in writing of any known or suspected breach of any such
proprietary rights that come to DISTRIBUTOR's attention.
(g) Indemnification for Infringement.
(i) Subject to the limitations set forth in this Section 7(g),
ORBIMAGE agrees to indemnify and hold harmless DISTRIBUTOR from and
against all claims, demands, complaints, actions and liabilities
resulting or arising from any claim of any third party (not including
any affiliates of DISTRIBUTOR) based on the allegation that the
Standard Products and/or Value-Added Products supplied by ORBIMAGE
hereunder infringe any U.S. or non-U.S. patent, trademark, trade secret
or copyright of a third party, provided that DISTRIBUTOR (A) gives
ORBIMAGE prompt written notice of any such claims, (B) allows ORBIMAGE
to direct the defense and settlement of the claims, provided that the
terms of any such settlement shall have been approved by DISTRIBUTOR,
which consent shall not be unreasonably withheld, and (C) provides
ORBIMAGE with the information and assistance reasonably necessary for
the defense and settlement of the claim, at no cost to DISTRIBUTOR. All
costs of such defense and the amount of any judgment, award or
settlement that may result therefrom, shall be the sole responsibility
of and shall be paid by ORBIMAGE. Notwithstanding the foregoing, the
DISTRIBUTOR shall have the
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right, at its sole expense, to appoint its own counsel to participate
in such defense. In such event, ORBIMAGE shall instruct the counsel
retained by ORBIMAGE to defend DISTRIBUTOR to cooperate with the
DISTRIBUTOR's designated counsel. This indemnification obligation
shall survive the expiration or termination of this Agreement for a
period of two (2) years. If a final injunction is obtained in an
action based on any such claim against DISTRIBUTOR's use of Standard
Products and/or Value-Added Products by reason of such infringement,
or if in ORBIMAGE's opinion such an injunction is likely to be
obtained, ORBIMAGE may, at its sole option, either (X) obtain for
DISTRIBUTOR the right to continue using the Standard Products and/or
Value-Added Products, or (Y) replace or modify the Standard Products
and/or Value-Added Products so that it becomes noninfringing.
(iii) Notwithstanding Section 7(g)(i), ORBIMAGE shall not be
liable to DISTRIBUTOR for any claim to the extent that
such claim arises from or is based upon the combination,
manipulation, processing or use of any Standard Products
and/or Value-Added Products by DISTRIBUTOR, the
Subdistributors and/or the Value-Added Resellers in
violation of this Agreement, or with equipment, data or
programming not supplied by ORBIMAGE, or arising from
any alteration or modification of Standard Products
and/or Value-Added Products by DISTRIBUTOR, the
Subdistributors and/or the Value-Added Resellers,
including, without limitation, derivative works created
therefrom.
SECTION 8. PAYMENT TERMS
(a) Sales of OrbView Images and Value-Added Products.
DISTRIBUTOR agrees that it shall pay ORBIMAGE the fees set forth on Schedule
8(a) hereto in consideration of the sale (including any transfers or other
dispositions, whether or not in exchange for consideration) of Standard Products
and Value-Added Products hereunder.
(b) Guaranteed Annual Minimum; Suspension Period.
(i) Guaranteed Annual Minimum. In consideration of the
DISTRIBUTOR Reserved Satellite Capacity being provided
to DISTRIBUTOR hereunder, DISTRIBUTOR shall pay ORBIMAGE
the minimum annual amounts set forth in Schedule 8(b)
hereto during each Operational Year commencing as of the
Operational Date, which amounts shall be applied against
amounts owed by DISTRIBUTOR to ORBIMAGE for sales of
Standard Products and Value-Added Products hereunder
(such amounts in each Operational Year being referred to
herein as the "Guaranteed
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Annual Minimum"), subject to adjustment as provided in
Section 9 or suspension as provided in Sections 8(b)(ii)
or (iii). DISTRIBUTOR shall not be required to pay the
Guaranteed Annual Minimum with respect to the second
High-Resolution Satellite until such satellite has
successfully completed on-orbit check-out as determined
by ORBIMAGE and is capable of downlinking OrbView Data
to the Designated Earth Station in accordance with the
performance specifications set forth in the Earth
Station Agreement. The applicable Guaranteed Annual
Minimum shall be paid in equal monthly installments
during the term hereof. The first monthly installment of
the applicable Guaranteed Annual Minimum shall be
payable within thirty (30) days of (A) the end of the
first month following the Operational Date, or (B) the
date on which the second High-Resolution Satellite has
successfully completed on-orbit check out and is capable
of downlinking OrbView Data to the Designated Earth
Station in accordance with the performance
specifications set forth in the Earth Station Agreement,
as applicable. Thereafter, subsequent monthly
installments of the applicable Guaranteed Annual Minimum
shall be payable in arrears no later than the first
business day (i.e., a day on which banks are open for
business in both Dulles, Virginia and Toulouse, France)
of each succeeding month. Amounts owed to ORBIMAGE by
SICorp. under the SICorp. Agreement shall be credited
towards the Guaranteed Annual Minimum. DISTRIBUTOR shall
be obligated to pay the applicable Guaranteed Annual
Minimum due in each Operational Year (or shorter period
if this Agreement is earlier terminated) even if the
amounts due under Schedule 8(a) hereto for the sale of
Standard Products and Value-Added Products during such
period are less than the amount of the Guaranteed Annual
Minimum otherwise due for such period.
(ii) [*CONFIDENTIAL TREATMENT REQUESTED*]
(c) Payments for Sales of Standard Products and Value-Added
Products.
(i) DISTRIBUTOR shall pay ORBIMAGE all amounts due pursuant to
Schedule 8(a) on a quarterly basis within (30) days after the end of
such quarter, less the amount of the Guaranteed Annual Minimum paid
during such quarter. Each payment shall be accompanied by a written
accounting setting forth the basis for such payment in reasonable
detail, as well as such other information as ORBIMAGE shall reasonably
request.
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(ii) ORBIMAGE shall pay DISTRIBUTOR all amounts due pursuant
to Schedule 8(a) on a quarterly basis within thirty (30) days after the
end of such quarter. Each payment shall be accompanied by a written
accounting setting forth the basis for such payment in reasonable
detail, as well as such other information as DISTRIBUTOR shall
reasonably request.
(iii) Each of ORBIMAGE and DISTRIBUTOR agree that they shall
use commercially reasonable efforts to collect all amounts owed to them
by their respective customers and licensees and which constitute Gross
Revenues for purposes of calculating fees owed to the other based on
Gross Revenues.
(d) Records. DISTRIBUTOR and ORBIMAGE shall keep accurate
records of their respective activities that give rise to the payment
requirements under this Agreement. Such records shall be in a form that is
sufficient to demonstrate compliance with the provisions of this Agreement. This
obligation shall survive two (2) years following termination of this Agreement.
(e) Audit Rights. ORBIMAGE and DISTRIBUTOR (the "Auditing
Party") shall have the right to audit (under a duty of confidentiality) the
other party's records (the "Audited Party") for the sole purpose of confirming
any amounts payable by the Audited Party hereunder to the Auditing Party, by
giving fifteen (15) days written notice to the Audited Party; provided that such
audit rights shall be subject to any applicable national security limitations
required by military, intelligence and defense customers, in which case the
parties shall cooperate in good faith to meet the intent of this Section 8(e) in
a manner consistent with the requirements of such national security limitations.
The audit shall be carried out by the Auditing Party or its representatives. The
Audited Party shall make its records available to the Auditing Party during
normal business hours, within thirty (30) days of the Audited Party's receipt of
the Auditing Party's written request. The Auditing Party shall complete its
audit within fifteen (15) days of obtaining access to such records, and shall
deliver its results to the Audited Party within thirty (30) days of the
completion of the audit. The costs of the audit shall be borne by the Auditing
Party, unless it is determined that the Audited Party has underpaid amounts due
to the Auditing Party hereunder by more than five percent (5%), in which case
the Audited Party shall pay for the cost of the audit. The Audited Party shall
promptly pay any amounts determined to be owed as a result of such audit. This
Section 8(e) shall survive for two (2) years following termination of this
Agreement.
(f) Late Payments; Off-Set. All amounts due but remaining unpaid after
payment is due under this Agreement shall bear interest until paid at the annual
rate equal to the prime rate announced by Morgan Guaranty Trust Company of New
York from time to time, plus two percent (2%) per annum, during the period of
nonpayment. All payments required to be made by either party hereunder shall be
made without off-set, adjustment or reduction of any kind, except as permitted
by applicable law.
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SECTION 9. [*CONFIDENTIAL TREATMENT REQUESTED*]
SECTION 10. TERM; TERMINATION; EXTENSION OF TERM
(a) Term. The term of this Agreement shall commence on the date of this
Agreement and shall continue in effect for a period of five (5) years following
the Operational Date, unless extended or earlier terminated in accordance with
this Agreement, in which event the term shall end at the expiration of the
applicable extension period or the effective date of the applicable termination,
as the case may be.
(b) Termination by ORBIMAGE. This Agreement may be terminated by
ORBIMAGE at any time by written notice to DISTRIBUTOR after the occurrence of
any of the following events of default:
(i) DISTRIBUTOR shall fail to pay the Guaranteed Annual
Minimum or any other amount when due hereunder, or shall breach any of
its representations, warranties, covenants or other obligations under
this Agreement (other than breaches covered by Sections 10(g) or
10(i)), and such failure shall remain uncured for a period of thirty
(30) days after receipt by DISTRIBUTOR of written notice thereof; or
(ii) DISTRIBUTOR 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.
In addition, ORBIMAGE shall have the right to terminate this Agreement
as provided in Sections 10(d), 10(g), 10(h) and 10(i).
(c) Termination by DISTRIBUTOR. This Agreement may be terminated by
DISTRIBUTOR at any time by written notice to ORBIMAGE after the occurrence of
any of the following events of default:
(i) ORBIMAGE shall fail to pay any amounts due to DISTRIBUTOR
when due hereunder, or shall breach any of its representations,
warranties, covenants or other obligations under this Agreement (other
than breaches covered by Section 10(g) or 10(i)), and such failure
shall remain uncured for a period of thirty (30) days after receipt by
ORBIMAGE of written notice thereof; or
(ii) ORBIMAGE 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,
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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.
In addition, DISTRIBUTOR shall have the right to terminate this
Agreement as provided in Sections 4(k), 8(b)(ii), 9(b)(v), 9(c)(iv), 9(d)(ii),
10(d), 10(g), 10(h) and 10(i).
(d) Termination Due to DOC Disapproval; Termination of DOC License.
(i) Termination Due to DOC Disapproval. The parties
acknowledge that this Agreement is subject to review and approval by
the DOC. ORBIMAGE agrees that it shall submit this Agreement to the DOC
promptly after its execution by the parties. This agreement shall
automatically terminate with no further action required by either party
and with no liability to either party if DOC disapproves the Agreement,
or if DOC approval has not been received within ninety (90) days of the
date of this Agreement, provided that ORBIMAGE shall refund to
DISTRIBUTOR all amounts paid to ORBIMAGE by DISTRIBUTOR pursuant to the
Earth Station Agreement within sixty (60) days of such termination.
(ii) Termination of DOC License. Subject to any
permitted cure periods described in Section 10(i), this Agreement shall
terminate automatically if the U.S. Government terminates the DOC
License. In such event, the liability of the parties to each other from
any such termination shall be governed solely by Section 10(i).
(e) Termination of Subdistributor and Value-Added Reseller Agreements.
In the event of the occurrence of the following events of default under a
Subdistributor Agreement or Value-Added Reseller Agreement, ORBIMAGE shall have
the right to require DISTRIBUTOR to immediately terminate such agreement if
required in order for ORBIMAGE to remain in compliance with the DOC License: A
Subdistributor or Value-Added Reseller shall breach any of its obligations
contained in its Subdistributor Agreement or Value-Added Reseller Agreement, as
applicable, comparable to those set forth in Sections 14(a) hereof. DISTRIBUTOR
shall provide ORBIMAGE with prompt notice of any such breach of which it becomes
aware.
(f) Extension of Term. DISTRIBUTOR shall have an option to extend the
term of this Agreement for an additional term of two (2) years, followed by an
option to extend the term by additional term of three (3) years, by giving
written notice to ORBIMAGE not less that twelve (12) months prior to the end of
the then current term, provided, that the Guaranteed Annual Minimum during the
additional terms shall be increased to (i) [*CONFIDENTIAL TREATMENT REQUESTED*]
per Operational Year if only the OrbView-3 satellite is operational; (ii)
[*CONFIDENTIAL TREATMENT REQUESTED*] per Operational Year if only the OrbView-4
satellite is
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operational; and (iii) [*CONFIDENTIAL TREATMENT REQUESTED*] per Operational Year
if both the OrbView-3 and OrbView-4 satellites are operational.
(g) Violation of Exclusivity Provisions. Notwithstanding any contrary
provision of this Agreement, ORBIMAGE and DISTRIBUTOR hereby agree as follows:
(i) ORBIMAGE may terminate this Agreement by written notice to
DISTRIBUTOR in the event that DISTRIBUTOR (A) materially breaches its
obligations as set forth in section 3(e)(i) hereof, and fails to cure
such breach within a period of thirty (30) days after receipt by
DISTRIBUTOR of written notice thereof, or (B) breaches its obligations
as set forth in section 3(e)(ii) hereof.
(ii) DISTRIBUTOR may terminate this Agreement by written
notice to ORBIMAGE in the event that ORBIMAGE materially breaches its
obligations as set forth in sections 4(b) or 4(d) hereof, and fails to
cure such breach within a period of thirty (30) days after receipt by
ORBIMAGE of written notice thereof.
(iii) If either ORBIMAGE or DISTRIBUTOR terminates this
Agreement pursuant to this Section 10(g) (for purposes of this Section
10(g), a "terminating party"), the breaching party shall be liable to
the terminating party for any actual damages suffered by such
terminating party as a result of such breach, including, without
limitation, any foreseeable lost profits, documented to the breaching
party's reasonable satisfaction, to the extent not specifically covered
by the terminating party's insurance, up to a maximum aggregate amount
of [*CONFIDENTIAL TREATMENT REQUESTED*].
(h) Cross Default. ORBIMAGE and DISTRIBUTOR hereby agree as
follows:
(i) If either party (or such party's trustee in bankruptcy) is
permitted to terminate, and so terminates, the Earth Station Agreement,
this Agreement shall automatically terminate without any further action
required by either party, effective as of the termination date of the
Earth Station Agreement.
(ii) If either party (or such party's trustee in bankruptcy)
is permitted to terminate, and so terminates, this Agreement, the Earth
Station Agreement shall automatically terminate without any further
action required by either party, effective as of the termination date
of this Agreement.
(iii) If this Agreement and the Earth Station Agreement are
terminated pursuant to Sections 10(h)(i) or 10(h)(ii) above, the
SICorp. Agreement shall automatically terminate without any further
action required by either party, effective as of the termination date
of said agreements.
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(iv) ORBIMAGE and DISTRIBUTOR agree that they shall each
execute such documents and take such actions as are required to
effectuate the intent of this Section 10(h).
(i) [*CONFIDENTIAL TREATMENT REQUESTED*]
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(j) Effective Date of Notices. Any party entitled to terminate this
Agreement may give notice of termination to the other party specifying the
effective date thereof, which shall not be less than thirty (30) days from the
date of such notice, except as otherwise specifically set forth herein.
(k) Effect of Termination. In the event of the termination of this
Agreement by either party as permitted by this Agreement, effective on the
effective date of such termination, neither party shall have any obligation or
liability to the other party of any nature whatsoever except as otherwise
expressly provided in this Agreement.
(l) Return of Licensed Technology. DISTRIBUTOR shall immediately return
all proprietary software and hardware which ORBIMAGE or its affiliates licensed
to DISTRIBUTOR pursuant to the Earth Station Agreement at the expiration of the
term of this Agreement or any termination of this Agreement; provided, however,
that DISTRIBUTOR shall be entitled to keep any such proprietary software and
hardware necessary to continue selling Standard Products and Value-Added
Products contained in the Distributor Archive pursuant to Section 3(k).
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(m) Termination Payments. Any amount becoming due hereunder to any
party as a result of termination of this Agreement shall be paid to such party
no later than sixty (60) days following the effective date of such termination.
(n) Ratification and Approval; Exclusive Dealing.
(i) Each of ORBIMAGE and DISTRIBUTOR acknowledge and agree
that this Agreement, the Earth Station Agreement and the SICorp.
Agreement shall not enter into legal effect if (A) ORBIMAGE's Board of
Directors has not ratified and approved this Agreement, the Earth
Station Agreement and the SICorp. Agreement on or before August 20,
1999, which approval shall be expressly contingent upon the
DISTRIBUTOR's Board of Directors approving this Agreement and the Earth
Station Agreement on the exact terms and condition set forth herein and
therein; or (B) DISTRIBUTOR's Board of Directors has not ratified and
approved (i) the [*CONFIDENTIAL TREATMENT REQUESTED*] liability cap
applicable to DISTRIBUTOR and ORBIMAGE set forth in Sections 10(g) and
10(i) hereof, and (ii) the eighteen (18) month deadline for the
delivery of the Designated Earth Station set forth in Exhibit B,
Section 5 of the Earth Station Agreement, on or before September 30,
1999. In the event that the foregoing conditions have not been
satisfied, this Agreement, the Earth Station Agreement and the SICorp.
Agreement shall automatically terminate without any liability to either
party and without any further action being required of either party.
(ii) DISTRIBUTOR hereby agrees that from the date of this
Agreement through September 30, 1999 (or August 20, 1999, if earlier
terminated pursuant to the foregoing paragraph), it shall not, directly
or indirectly, through any employee, officer, agent, representative or
otherwise, make offers to, solicit or entertain offers from, negotiate
with or in any manner encourage, discuss, accept or consider any
proposal of, any Person for DISTRIBUTOR to become a distributor of
panchromatic satellite imagery with resolution equal to or better than
two (2) meters and/or multispectral satellite imagery with resolution
equal to or better than four (4) meters in the Territory and/or the
countries outside of the Territory in which DISTRIBUTOR has
non-exclusive distribution rights hereunder. Notwithstanding anything
in Section 10(n)(i) above to the contrary, DISTRIBUTOR further agrees
that this Section 10(n)(ii) is the legally binding agreement of
DISTRIBUTOR.
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(iii) ORBIMAGE hereby agrees that from the date of this
Agreement through September 30, 1999 (or August 20, 1999, if earlier
terminated pursuant to the foregoing paragraph), it shall not, directly
or indirectly, through any employee, officer, agent, representative or
otherwise, make offers to, solicit or entertain offers from, negotiate
with or in any manner encourage, discuss, accept or consider any
proposal of, any Person for such Person to become a distributor of
Standard Products and/or Value-Added Products in the Territory.
Notwithstanding anything in Section 10(n)(i) above to the contrary,
ORBIMAGE further agrees that this Section 10(n)(iii) is the legally
binding agreement of ORBIMAGE.
SECTION 11. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
(a) Representations and Warranties. Each of ORBIMAGE and DISTRIBUTOR
represents and warrants to the other as follows:
(i) Such party is duly organized and in good standing under
the laws of its jurisdiction of organization and in each other
jurisdiction where such organization or good standing is required for
the performance of this Agreement;
(ii) Such party has the power and authority, corporate or
otherwise, to enter into this Agreement and to perform its obligations
hereunder, and the execution, delivery and performance of the Agreement
by such party has been duly authorized by all necessary action;
(iii) The Agreement has been duly executed and delivered by
such party and constitutes a legally valid and binding obligation of
such party, enforceable against such party in accordance with its
terms; and
(iv) Such party's entry into and performance under this
Agreement does not violate any its certificate of incorporation, bylaws
or similar constituent documents, or any law, rule or regulation,
judicial, administrative or executive order, or contractual commitment
by which such party or its assets is bound.
(b) Indemnification. Except as otherwise set forth in Section 7(g),
each of ORBIMAGE and DISTRIBUTOR (each, an "Indemnifier") agrees to indemnify
and hold harmless the other (the "Indemnitee") from and against all claims,
demands, complaint, action or liabilities (including reasonable attorneys' fees)
asserted by third parties (not including any affiliates of the Indemnitee)
against the Indemnitee arising out of or in connection with the Indemnifier's
breach of this Agreement or any representations, warranties, covenants or
agreements contained herein, provided that the Indemnitee (i) gives the
Indemnifier prompt written notice of any such claims, demands, complaint, action
or liabilities; (ii) allows the Indemnifier to direct the defense and settlement
of the claims, provided that the terms of any such settlement shall have been
approved by
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DISTRIBUTOR, which consent shall not be unreasonably withheld; and (iii)
provides the Indemnifier with the information and assistance reasonably
necessary for the defense and settlement of the claim, at no cost to the
Indemnitee. All costs of such defense and the amount of any judgment, award or
settlement that may result therefrom, shall be the sole responsibility of and
shall be paid by the Indemnifier. Notwithstanding the foregoing, the Indemnitee
shall have the right, at its sole expense, to appoint its own counsel to
participate in such defense. In such event, the Indemnifier shall instruct the
counsel retained by the Indemnifier to defend the Indemnitee to cooperate with
the Indemnitee's designated counsel. This indemnification obligation shall
survive the expiration or termination of this Agreement for a period of two (2)
years.
SECTION 12. LIMITED WARRANTY; LIMITATION OF LIABILITY
(a) Limited Warranty.
(i) ORBIMAGE hereby warrants to DISTRIBUTOR that any Standard
Products and/or Value-Added Products supplied by ORBIMAGE to
DISTRIBUTOR from the OrbNet Archive for sale will, for ninety (90) days
from the date of delivery to DISTRIBUTOR, be free from defects in media
and conform to the supplier's specifications when used on appropriate
computer hardware.
(ii) DISTRIBUTOR hereby warrants to ORBIMAGE that any Standard
Products and/or Value-Added Products supplied by DISTRIBUTOR to
ORBIMAGE from the Distributor Archive for sale will, for ninety (90)
days from the date of delivery to ORBIMAGE, be free from defects in
media and conform to the supplier's specifications when used on
appropriate computer hardware.
(b) DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 12(A),
EACH OF DISTRIBUTOR AND ORBIMAGE HEREBY ACKNOWLEDGE AND AGREE THAT THE OTHER
PARTY HAS NOT MADE NOR SHALL IT BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND
SERVICES BEING PROVIDED BY DISTRIBUTOR AND ORBIMAGE, AS THE CASE MAY BE,
HEREUNDER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF DISTRIBUTOR AND
ORBIMAGE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING
BY LAW, COURSE OF PERFORMANCE, CUSTOM OR USAGE IN THE TRADE OR OTHERWISE, WITH
RESPECT TO ANY PRODUCTS OR SERVICES TO BE PROVIDED BY SUCH PARTY HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE. Without limitation of the foregoing, neither
DISTRIBUTOR nor ORBIMAGE represent or warrant that the services and
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products to be provided by them hereunder shall be provided free of omissions,
errors delays or interruptions.
(c) Warranties by Parties. Neither DISTRIBUTOR nor ORBIMAGE shall make
any warranties, representations or guarantees, whether written or oral, on the
other party's behalf.
(d) Limitation of Liability of ORBIMAGE. EXCEPT AS SPECIFICALLY SET
FORTH IN SECTIONS 4(K), 7(G), 8(B)(II), 8(B)(III), 9(B)(V), 9(C)(IV), 9(D)(II),
10(D), 10(G) AND 10(I), ORBIMAGE'S ENTIRE LIABILITY TO DISTRIBUTOR FOR ANY AND
ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES OR OTHER LIABILITIES OF ANY NATURE
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, INCURRED BY
DISTRIBUTOR IN CONNECTION WITH ORBIMAGE'S PRODUCTION AND DELIVERY OF ORBVIEW
DATA, STANDARD PRODUCTS AND/OR VALUE-ADDED PRODUCTS TO DISTRIBUTOR HEREUNDER
SHALL, IN EACH INSTANCE, BE LIMITED TO THE FEES ACTUALLY PAID BY DISTRIBUTOR FOR
SUCH ORBVIEW DATA, STANDARD PRODUCTS AND/OR VALUE-ADDED PRODUCTS. Nothing in
this Section 12(d) shall be interpreted to limit or restrict DISTRIBUTOR's right
to receive damages from ORBIMAGE under Sections 4(k), 7(g), 8(b)(ii), 8(b)(iii),
9(b)(v), 9(c)(iv), 9(d)(ii), 10(g) or (10)(i) hereof.
(e) Limitation of Liability of DISTRIBUTOR. EXCEPT AS SPECIFICALLY SET
FORTH IN SECTIONS 10(G), AND 10(I) HEREOF, DISTRIBUTOR'S ENTIRE LIABILITY TO
ORBIMAGE FOR ANY AND ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES OR OTHER
LIABILITIES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ATTORNEYS'
FEES, INCURRED BY ORBIMAGE IN CONNECTION WITH DISTRIBUTOR'S PRODUCTION AND
DELIVERY OF ORBVIEW DATA, STANDARD PRODUCTS AND/OR VALUE-ADDED PRODUCTS TO
ORBIMAGE HEREUNDER SHALL, IN EACH INSTANCE, BE LIMITED TO THE FEES ACTUALLY PAID
BY ORBIMAGE FOR SUCH ORBVIEW DATA, STANDARD PRODUCTS AND/OR VALUE-ADDED
PRODUCTS. Nothing in this Section 12(e) shall be interpreted to limit or
restrict ORBIMAGE's right to receive damages from DISTRIBUTOR under Sections
10(g) and 10(i) hereof.
(f) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL
ORBIMAGE OR DISTRIBUTOR HAVE ANY LIABILITY OR OBLIGATION TO THE OTHER OR THEIR
RESPECTIVE CUSTOMERS UNDER THIS AGREEMENT FOR LOSS OF USE, REVENUE OR PROFIT,
BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES HEREUNDER, WHETHER ARISING IN CONTRACT, TORT
OR OTHERWISE, EVEN IF ORBIMAGE OR DISTRIBUTOR, AS THE CASE MAY BE, HAS BEEN
ADVISED
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OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT AS OTHERWISE PROVIDED IN SECTIONS
10(G) AND 10(I).
SECTION 13. DISPUTE RESOLUTION; ARBITRATION
(a) Dispute Resolution. ORBIMAGE and DISTRIBUTOR agree that if any
controversy, claim or dispute (a "Dispute") arises from time to time between the
parties in respect of this Agreement or either party's performance hereunder,
then the following course of action shall be initiated in order to amicably
resolve such Dispute: Either party may notify the other party of the Dispute,
which notice shall describe the Dispute in reasonable detail. Promptly after the
other party's receipt of said notice, a designated representative of each of the
parties shall attempt to amicably resolve the Dispute. If the designated
representatives are unable to resolve such Dispute within ten (10) days of the
other party's receipt of said notice, the Dispute shall be referred to a panel
consisting of a delegate from each party (the "Special Panel"), who shall be a
senior manager or vice president of the applicable party. The Special Panel
shall meet within five (5) days of the end of said 10-day period. If the Special
Panel is unable to resolve the Dispute within ten (10) days of the date on which
it first meets, or such longer period as may be mutually agreed, the dispute
shall be declared irreconcilable and will proceed to binding arbitration in
accordance with the procedures set forth in Section 13(b).
(b) Arbitration. The parties hereto agree that the sole and exclusive
method for resolving any Disputes which cannot be amicably settled by the
parties pursuant to Section 13(a) shall be by final and binding arbitration
administered by the American Arbitration Association ("AAA"), in accordance with
the International Arbitration Rules of the AAA then in effect, to the extent not
modified by this Section 13. The arbitral tribunal shall be composed of three
(3) arbitrators.
(i) If the Special Panel is unable to resolve the Dispute as
described in Section 13(a), the Special Panel shall initiate
arbitration hereunder by written notice to the AAA, which notice shall
include the appointment of each party's arbitrator. Such notice shall
be sent to the AAA's International Center located at 140 West 51st
Street, New York, New York 10020-1203 within ten (10) days of the date
on which the Dispute is declared irreconcilable. Within ten (10) days
of the appointment of the second arbitrator, the two arbitrators shall
appoint the third arbitrator, who shall be expert in satellite remote
sensing systems and shall act as the chairman of the arbitral tribunal
(the "Chairman").
(ii) If the Special Panel fails to initiate arbitration as
provided in 13(b)(i), either party may commence arbitration hereunder
by written notice to the AAA (at the address above) and the other
party, which notice shall include the appointment of such party's
arbitrator. The other party shall appoint its arbitrator within ten
(10) days of its receipt of said notice. If such party fails to appoint
its arbitrator within such time period, the AAA shall appoint the
second arbitrator.
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Within fifteen (15) days of the appointment of the second arbitrator,
the two arbitrators shall appoint the third arbitrator who shall act as
the Chairman.
(iii) If the two arbitrators are unable to agree on the third
arbitrator within the specified time period in Section 13(b)(i) or
13(b)(ii), as applicable, the AAA shall appoint the third arbitrator.
(iv) The arbitration shall be conducted in English and shall
be held in Washington, D.C. Judgment upon any award rendered by the
arbitrators may be entered in any U.S. or non-U.S. court having
jurisdiction over the matter. 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
an award is enforced shall pay all reasonable costs and attorneys' fees
incurred by the party seeking to enforce the award.
(v) TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES WAIVE
ALL REQUIREMENTS AS TO PERSONAL JURISDICTION WITH RESPECT TO ANY
JUDICIAL ENFORCEMENT OF THE ARBITRATION AWARD OR ANY JUDICIAL
PROCEEDING TO ENFORCE THIS SECTION 13.
(c) Consolidation of Disputes. In the event that one or more Disputes
arise under each of this Agreement and the Earth Station Agreement, such
Disputes shall be consolidated and addressed simultaneously under the procedures
set forth in this Section 13.
(d) Continuing Obligations. The existence of any Dispute between the
parties, whether or not the same is the subject of a dispute resolution or
arbitration proceeding described in Sections 13(a) or 13(b), shall not relieve
the parties of their obligations under this Agreement or the Earth Station
Agreement in the event of a consolidation of Disputes, except as specifically
provided in the Earth Station Agreement.
(e) Injunctive Relief. Notwithstanding Sections 13(a) and 13(b),
DISTRIBUTOR agrees that if it breaches the provisions of Section 7, and each of
ORBIMAGE and DISTRIBUTOR agree that if it violates the provisions of Section
15(o), the non-breaching party would be irreparably injured and that the
remedies available under this Section 13 or at law for such breach would be
inadequate. In such event, each of ORBIMAGE and DISTRIBUTOR agree that the
non-breaching party shall be entitled to temporary or other injunctive relief,
including, without limitation, specific performance, without necessity of
proving monetary damages or posting a bond, pending final resolution of the
matter in accordance with this Section 13.
SECTION 14. COMPLIANCE WITH LAWS
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(a) DOC License.
(i) DISTRIBUTOR acknowledges that this Agreement is subject to
the terms and conditions of the DOC License. Without limitation of the
foregoing, the DOC License requires ORBIMAGE to operate the High
Resolution Satellites in a manner that preserves the United States
national security and observes international obligations and foreign
policies of the United States and that DISTRIBUTOR abide by the terms
and conditions of the DOC License addressing United States national
security, international obligations and foreign policies.
(ii) In order to ensure ORBIMAGE's compliance with the DOC
License, DISTRIBUTOR hereby agrees that it shall abide by the terms and
conditions of the DOC License addressing United States national
security and international obligations and foreign policies. In
addition, DISTRIBUTOR agrees to abide by all other terms and conditions
of the DOC License applicable to the DISTRIBUTOR, and any other
obligations applicable to the DISTRIBUTOR that may be imposed by the
United States Government from time to time pursuant to the DOC License.
Without limitation of the foregoing, in order to ensure DISTRIBUTOR's
compliance with the foregoing, the DOC requires that DISTRIBUTOR agree
as follows: DISTRIBUTOR hereby agrees that it shall not sell,
distribute, transmit or otherwise distribute any Standard Products or
Value-Added Products to (i) any Person who is headquartered in,
organized under the laws of or a citizen of any country on the U.S.
State Department list of terrorist countries, (ii) any Person who is
subject to sanctions administered by OFAC, including, without
limitation, Persons who are designated by OFAC from time to time as
"Specially Designated Nationals or Blocked Persons," or (iii) any
Person who under U.S. laws, regulations or orders is otherwise
prohibited from receiving such products.
(iii) ORBIMAGE will provide DISTRIBUTOR with prompt written
notice of any amendments or other changes to the DOC License affecting
DISTRIBUTOR's rights or obligations under this Agreement.
(b) Compliance with U.S. and Other Laws. Each of ORBIMAGE and
DISTRIBUTOR shall comply in all material respects with all applicable laws,
rules and regulations of all applicable United States, French or other foreign
governmental authorities, and all applicable international agreements, in the
performance of their respective obligations hereunder. DISTRIBUTOR shall
endeavor to provide ORBIMAGE with timely notice of all changes in French law or
the laws of any other countries in the Territory applicable to ORBIMAGE's
performance of, or which affect ORBIMAGE's rights under, this Agreement, it
being agreed that such notices are solely for informational purposes and
ORBIMAGE shall remain ultimately responsible for knowledge of, and compliance
with, any such changes. ORBIMAGE shall endeavor to provide DISTRIBUTOR with
timely notice of all changes in U.S. law (other than
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changes to the DOC License, which are covered by Section 14(a)(iii) above)
applicable to DISTRIBUTOR's performance of, or which affect DISTRIBUTOR's rights
under, this Agreement, including, without limitation, any changes to the OFAC
prohibited countries and Persons described in Section 14(a)(ii) hereof, it being
agreed that such notices are solely for informational purposes and DISTRIBUTOR
shall remain ultimately responsible for knowledge of, and compliance with, any
such changes.
(c) Export Control and Munitions Regulations. DISTRIBUTOR acknowledges
that ORBIMAGE is subject to United States Arms Export Control Act and
International Traffic In Arms Regulations (22 U.S.C. Section 275 et seq., 22
C.F.R. Part 120, et seq.) and other laws and regulations which govern the export
of certain technology related to the transmission and receipt of OrbView Data
("Export Control Laws"). DISTRIBUTOR agrees that it shall comply with all
applicable Export Control Laws and shall not do any act or take any action which
will cause ORBIMAGE to violate the Export Control Laws.
(d) Permits. Each party shall be solely responsible for securing any
permits or licenses it may need to fulfill its obligations under this Agreement.
Without limitation of the foregoing, ORBIMAGE shall be solely responsible for
securing any permits or licenses it may need to export deliverables from the
United States under this Agreement and DISTRIBUTOR shall be solely responsible
for securing any permits or licenses it may need to import deliverables under
this Agreement into the Territory.
(e) Changes in Law.
(i) U.S. Law. In the event of any change in any applicable
U.S. laws, rules or regulations, including, without limitation, the DOC
License and the Land Remote Sensing Policy Act, which have a material
adverse commercial impact on DISTRIBUTOR's rights under this Agreement,
ORBIMAGE and DISTRIBUTOR will use commercially reasonable efforts,
consistent with U.S. law and the DOC License, to minimize the adverse
commercial impact of any such changes.
(ii) French Law. In the event of any change in any applicable
French laws, rules or regulations which have a material adverse
commercial impact on ORBIMAGE's rights under this Agreement, ORBIMAGE
and DISTRIBUTOR will use commercially reasonable efforts, consistent
with French law, to minimize the adverse commercial impact of any such
changes.
SECTION 15. MISCELLANEOUS
(a) Notices. All notices given under this Agreement must be in writing
and must be given by (i) hand delivery, (ii) by a recognized international
overnight courier guaranteeing at least three-day delivery or (iii) by
registered or certified mail, return receipt requested, postage prepaid, to:
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ORBIMAGE:
ORBIMAGE
21700 Atlantic Boulevard
Dulles, VA 20166
Telephone: (703) 406-5409
Facsimile: (703) 406-5552
Attention: Steven M. Cox
DISTRIBUTOR:
Spot Image
5 rue de Satellites
BP 4359
F-31030 Toulouse Cedex 4 - France
Telephone: 33-(0)5-62-19-40-01
Facsimile: 33-(0)5-62-19-40-11
Attention: President - Directeur General
All such notices shall be deemed to have been duly given on the date of receipt
(i) as indicated on the return receipt, if sent by mail, (ii) if sent by
international courier, as indicated in the records of the international courier
company, or (iii) if given by hand, on the date of actual receipt.
(b) Successors and Assigns. This Agreement shall be binding upon the
parties hereto, their successors and permitted assigns. Neither party may assign
(by operation of law or otherwise) this Agreement nor any interests or duties of
such party hereunder without the express written consent of the other party.
(c) Entire Agreement. This Agreement and the Earth Station Agreement,
including the exhibits, schedules and other attachments hereto and thereto,
contain the entire understanding between DISTRIBUTOR and ORBIMAGE and supersedes
all prior written and oral understandings relating to the subject hereof and
thereof. Any modification or amendment of this Agreement (including the
attachments hereto) must be in writing and signed by both parties.
(d) Governing Law and Jurisdiction. This Agreement and any and all
claims, controversies or disputes arising under this Agreement or related to the
subject matter hereof shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia, without giving effect to the conflict of
law rules thereof or the Convention on Contracts for the International Sale of
Goods.
(e) Waiver of Sovereign Immunity. Each party hereto (including any
assignee or party assuming any rights or obligations under this Agreement)
unconditionally and irrevocably:
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(i) agrees that the execution, delivery and performance by it
of this Agreement constitutes private and commercial acts rather than
public or governmental acts;
(ii) agrees that should any legal proceedings be brought
against it or its assets in relation to this Agreement or any
transaction contemplated by this Agreement no immunity (sovereign or
otherwise) from such legal proceedings shall be claimed by or on behalf
of itself or with respect to its assets, to the maximum extent
permitted by law;
(iii) to the maximum extent permitted by law, waives any such
right of immunity (sovereign or otherwise) which it or its assets now
has or may acquire in the future; and
(iv) consents in respect of the enforcement of any judgment
against it in any such proceedings to the giving of any relief or the
issue of any process in connection with such proceedings including,
without limitation, to the maximum extent permitted by law, the making,
enforcement or execution against or in respect of any property
whatsoever (irrespective of its use or intended use) of any order or
judgment which may be made or given in such proceedings.
(f) Force Majeure. Except as provided in Section 10(i), Section 4(k) or
elsewhere in this Agreement, neither party shall be held responsible for failure
or delay in performance, delivery or data transmission 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 its control. 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
13.
(g) Costs. Except as otherwise expressly set forth herein, each party
shall bear its own costs and expenses incident to the negotiation and
performance of this Agreement.
(h) Waiver. It is understood and agreed that no failure or delay by
ORBIMAGE or DISTRIBUTOR 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 term or condition 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.
(i) Survival. DISTRIBUTOR's and ORBIMAGE's obligation to pay all
amounts due hereunder which accrued prior to the expiration of the term or
termination
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of this Agreement, as well as their respective obligations under Sections 3(k),
7(a), 7(b)(ii), 7(d)(i), 12, 13, 15(d), 15(e) and 15(f), shall survive
indefinitely after the expiration of the term or any termination of this
Agreement. Sections 3(j) and 4(h) shall survive for a period of six (6) months
after the expiration of the term or any termination of this Agreement. Sections
7(g), 8(d), 8(e), 11(b) and 15(o) shall survive for a period of two (2) years
after the expiration of the term or any termination of this Agreement.
(j) Severability. If any part of this Agreement shall be held
unenforceable, the remainder of this Agreement will nevertheless remain in full
force and effect.
(k) Headings; Appendixes. Headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose. The appendixes, exhibits and schedules described in this
Agreement and attached hereto are an integral part hereof and are incorporated
herein by this reference.
(l) Independent Contractors. DISTRIBUTOR and ORBIMAGE 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 other party the right or authority to act as a representative, agent
or employee of the other or shall be deemed to create a partnership or joint
venture between the parties.
(m) Agreement and Communications in English. The parties agree that
this Agreement, and all communications, notices or any written material to be
provided by ORBIMAGE to DISTRIBUTOR or by DISTRIBUTOR to ORBIMAGE hereunder,
shall be in the English language, and the parties hereby waive their rights, if
any, to require that this Agreement, or any communications, notices or written
materials provided hereunder, be in the French language.
(n) Payments. All payments due and payable to either party hereunder
shall be paid in U.S. Dollars in immediately available funds to the bank account
specified by such party in writing from time to time.
(o) Confidentiality. In the course of performing their respective
obligations hereunder, each of DISTRIBUTOR and ORBIMAGE may receive proprietary
information of the other party which will be nonpublic and confidential
("Confidential Information"). Each of DISTRIBUTOR and ORBIMAGE agrees that (i)
it shall keep the Confidential Information of the other in strictest confidence
using at least the same degree of care as it uses to protect its own proprietary
and confidential information and in no event less than a reasonable degree of
care under the circumstances; (ii) it shall not disclose any Confidential
Information of the other to any Person, except its employees who need to know
such information for the performance of their duties in connection with this
Agreement and who have agreed in writing prior to receipt of such Confidential
Information to receive such information under terms at least as restrictive as
those set forth in this Agreement; and (iii) it shall not use the Confidential
Information for any purpose other than as permitted by this Agreement.
Confidential Information shall not
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include information that (A) is generally available to the public at the time of
disclosure; (B) after disclosure becomes generally available to the public,
other than as a result of a disclosure to the public in breach of this
Agreement; (C) is lawfully obtained by the receiving party on a non-confidential
basis from a source other than the disclosing party prior to its receipt of the
Confidential Information from the disclosing party; or (D) is independently
developed by employees or other representatives of the receiving party. This
Section 15(o) shall not prevent the parties from submitting this Agreement
and/or a summary of its terms to their respective national authorities,
including, with respect to ORBIMAGE, the DOC and the U.S. Securities and
Exchange Commission.
(p) No Third Party Beneficiaries. Nothing expressed or referred to
herein shall be construed or interpreted to give any Person other than the
parties to this Agreement, including, without limitation, the Subdistributors
and the Value-Added Resellers, any legal, equitable or other right, remedy or
claim under or with respect to this Agreement.
(q) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original and all of which
together shall constitute one and the same instrument.
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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.
ORBITAL IMAGING CORPORATION
By:
---------------------------------
Name:
------------------------
Title:
-----------------------
SPOT IMAGE
By:
---------------------------------
Name:
------------------------
Title:
-----------------------
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EXHIBIT 1
DOC License
[*CONFIDENTIAL TREATMENT REQUESTED*]
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EXHIBIT 2(c)(i)
Pass Through Provisions for Subdistributor Agreements
Your rights are subject to the following conditions, all of which are expressly
accepted by you. You acknowledge that any failure by you to comply with any of
the following conditions can result, at our election, in termination of your
rights, without notice and without compensation.
1. You understand that your rights are geographically limited to customers
located in [define territory within Territory]. Your rights are
[exclusive/non-exclusive].
2. You agree to require each of your customers to agree as follows (by written
or "shrink-wrap" agreement acceptable to us):
2.1 The customer will use the [Standard Products] solely for internal
purposes; and
2.2 The customer will not sell, transfer, license or otherwise distribute
the [Standard Products] or any rights therein to any third party.
3. You acknowledge that the [Standard Products] contain OrbView Data, and/or
intellectual property derived from OrbView Data, which is the property of
Orbital Imaging Corporation ("ORBIMAGE"). You agree that all copies of the
[Standard Products] will bear the following legend:
"(C) [year of reception] Orbital Imaging Corporation. All Rights
Reserved."
4. You acknowledge that ORBIMAGE has granted no warranty with respect to the
[Standard Products] and assumes no liability to you or your customers.
5. You acknowledge that your right to distribute the [Standard Products] is
subject to your compliance with the applicable terms and conditions of a U.S.
Government license issued to ORBIMAGE. You further agree that you will comply
with all applicable provisions of U.S. law in connection with your distribution
of the [Standard Products].
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EXHIBIT 2(c)(II)
Pass Through Provisions for Value-Added Reseller Agreements
Your rights are subject to the following conditions, all of which are expressly
accepted by you. You acknowledge that any failure by you to comply with any of
the following conditions can result, at our election, in termination of your
rights, without notice and without compensation.
1. You understand that your rights are geographically limited to customers
located in [define territory, which can include any country in the world except
Japan]. Your rights are [exclusive/non-exclusive].
2. You acknowledge that the [Standard Products and Value-Added Products] contain
OrbView Data and/or intellectual property derived from OrbView Data, which is
the property of Orbital Imaging Corporation ("ORBIMAGE"). You agree that all
copies of [Value-Added Products created using Standard Products] will bear the
following legend:
"Produced under license from, and contains copyrighted material of,
Orbital Imaging Corporation. All Rights Reserved."
4. You acknowledge that ORBIMAGE has granted no warranty with respect to the
[Standard Products or Value-Added Products] and assumes no liability to you or
your customers.
5. You acknowledge that your right to create and/or distribute the [Value-Added
Products] is subject your compliance with the applicable terms and conditions of
a U.S. Government license issued to ORBIMAGE. You further agree that you will
comply with all applicable provisions of U.S. law in connection with your
distribution of the [Value-Added Products].
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EXHIBIT 2(d)
Required Terms in End-User Agreement
1. The End User Agreement must limit the end user's ("End User") license to use
the Standard Products to internal purposes only and not for resale or
distribution. The term of the sublicense for the Standard Products set forth in
the End User Agreement may be perpetual or a shorter period, in DISTRIBUTOR's
sole discretion.
2. The End User Agreement must prohibit the End User from selling, transferring,
licensing or otherwise distributing the Standard Products to any other Person.
3. The End User Agreement must disclose that the Standard Products contain
OrbView Data, and/or intellectual property derived from OrbView Data, which is
the property of Orbital Imaging Corporation ("ORBIMAGE"). The End User must
agree that all permitted copies of the Standard Products will bear the following
legend:
"(C) [year of reception] Orbital Imaging Corporation. All Rights
Reserved."
4. Any representations and warranties in the End User Agreement must be made by
DISTRIBUTOR or the Subdistributors, as applicable, and not on behalf of
ORBIMAGE.
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SCHEDULE 1(a)
Designated Non-Exclusive Countries
1. [*CONFIDENTIAL TREATMENT REQUESTED*]
2. [*CONFIDENTIAL TREATMENT REQUESTED*]
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SCHEDULE 1(b)
ORBIMAGE Trademarks
Mark Country U.S. Reg. No. Int'l Class
---- ------- ------------- -----------
"ORBIMAGE" U.S.A. 2039409 (2/18/97) 42
"ORBVIEW" U.S.A. 2091116 (8/26/97) 42
"ORBNET" U.S.A. 2152720 (4/21/98) 42
"ORBIMAGE GLOBAL IMAGING INFORMATION & DESIGN" (design attached)
(U.S.A. / U.S. Application No. 75/632,470; filed February 5, 1999 /
Int'l Class 42)
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SCHEDULE 1(c)
Performance Parameters
[*CONFIDENTIAL TREATMENT REQUESTED*]
SCHEDULE 1(f)
Territory
The Territory shall consist of the following countries and any
successor countries.
Albania
Andorra
Austria
Belarus
Belgium
Bosnia
Bulgaria
Croatia
Czech Republic
Denmark
Estonia
France
Germany
Gibraltar
Greece
Hungary
Ireland
Italy
Latvia
Liechtenstein
Lithuania
Luxembourg
Malta
Macedonia
Moldavia
Monaco
Netherlands
Norway
Poland
Portugal
Romania
San Marino
Slovakia
Slovenia
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Spain
Sweden
Switzerland
The Vatican
The United Kingdom
Yugoslavia (Serbia, Montenegro and Kosovo)
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SCHEDULE 2(a)
Countries Excluded from DISTRIBUTOR's Non-Exclusive Distribution Rights
Anguilla
Antigua
Armenia
Aruba
Azerbaijan
Barbados
Barbuda
Belize
Canada
Cayman Islands
Columbia
Costa Rica
Djibouti
Dominica
Dominican Republic
Egypt
El Salvador
Eritrea
Ethiopia
Grenada
Guatemala
Haiti
Honduras
Iran
Iraq
Jamaica
Japan
Jordan
Korea (North and South)
Lebanon
Mexico
Montserrat
Netherlands Antilles
Nicaragua
Oman
Panama
Qatar
Saint Kitts and Nevis
Saint Lucia
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Saint Vincent & the Grenadines
Saudi Arabia
Somalia
South Africa
Sudan
Syria
Taiwan
Trinidad & Tobago
United Arab Emirates
United States of America and its possessions and territories,
including, without limitation, Puerto Rico
Uganda
Venezuela
Virgin Islands
Yemen
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SCHEDULE 3(b)
Reserved Satellite Capacity
[*CONFIDENTIAL TREATMENT REQUESTED*]
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SCHEDULE 3(j)
ORBIMAGE'S Affiliates
McDonald Dettwiller & Associates Ltd.
ORBCOMM Global, L.P.
Magellan Corporation
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SCHEDULE 4(h)
DISTRIBUTOR's Affiliates
Spot Image Corporation (United States)
Spot Imaging Services (Australia)
Beijing Spot Image (China)
Spot Asia (Singapore)
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SCHEDULE 8(a)
Fee Schedule
[*CONFIDENTIAL TREATMENT REQUESTED*]
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SCHEDULE 8(b)
Guaranteed Annual Minimum
[*CONFIDENTIAL TREATMENT REQUESTED*]
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ANNEX 1 TO SCHEDULE 8(b)
Example 1
[*CONFIDENTIAL TREATMENT REQUESTED*]
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ANNEX 2 TO SCHEDULE 8(b)
Example 2
[*CONFIDENTIAL TREATMENT REQUESTED*]
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ANNEX 3 TO SCHEDULE 8(b)
Example 3
[*CONFIDENTIAL TREATMENT REQUESTED*]
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SCHEDULE 9(b)
Global Efficiency Metric (GEM)
[*CONFIDENTIAL TREATMENT REQUESTED*]
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SCHEDULE 9(c)
Example
[*CONFIDENTIAL TREATMENT REQUESTED*]
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