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EXHIBIT 10.15
GROUND SEGMENT PROCUREMENT CONTRACT
This Ground Segment Procurement Contract (the "Contract") is
entered into this 15th day of October 1996, between ORBCOMM INTERNATIONAL
PARTNERS, L.P. ("ORBCOMM"), whose principal place of business is 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx, 00000, XXX, and EUROPEAN COMPANY FOR MOBILE
COMMUNICATOR SERVICES, B.V., ORBCOMM EUROPE ("Licensee"), whose principal place
of business is ___________________________________________________.
WHEREAS, Orbital Communications Corporation ("OCC") and
Teleglobe Mobile Partners ("Teleglobe Mobile"), through ORBCOMM Global, L.P.
("ORBCOMM Global"), plan to design, develop, construct and operate a
satellite-based, low-Earth orbit message and data communications and position
determination system (the "ORBCOMM System") that is identified by the
International Telecommunications Union as "LEOTELCOM 1";
WHEREAS, the initial two satellites for the ORBCOMM System
were launched in April 1995 and are currently commercially available in the
United States for the non real-time transmission of short messages and data;
WHEREAS, ORBCOMM Global plans to market satellite-based,
two-way message and data communication and position determination services
using the ORBCOMM System (the "ORBCOMM Services") in the United States through
ORBCOMM USA, L.P. ("ORBCOMM USA") and elsewhere in the world through ORBCOMM;
WHEREAS, ORBCOMM and Licensee are concurrently herewith
executing an agreement pursuant to which, subject to certain terms and
conditions, ORBCOMM authorizes Licensee to access the satellites in the ORBCOMM
System and to use certain other related assets for purposes of Licensee
offering on an exclusive basis ORBCOMM Services using the ORBCOMM System in the
Territory; and
WHEREAS, ORBCOMM and Licensee are concurrently herewith
executing a software license agreement pursuant to which, among other things,
Licensee will be authorized to use, on the terms and conditions specified
therein, certain software needed to use and operate the ground segment hardware
to be procured pursuant to this Contract.
NOW, THEREFORE, the parties agree as follows:
SECTION 1 - DEFINED TERMS
"AAA" shall have the meaning assigned thereto in Section 10(a).
"Effective Date" shall mean the date of the execution of this
Contract.
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"Gateway Acceptance Test" shall have the meaning assigned thereto in
Section 2(d)(ii).
"Gateway Acceptance Test Certificate" shall have the meaning assigned
thereto in Section 4(b).
"Gateway Facilities and Environmental Specifications" shall have the
meaning assigned thereto in Section 2(c)(ii).
"Gateway Implementation Plan" shall have the meaning assigned thereto
in Section 2(c)(iv).
"Gateway Product Specifications" shall mean the functional
specifications of the Ground Segment Hardware, a copy of which is attached as
Attachment 4 hereto.
"Governmental Authority" shall mean any European, regional, country,
federal, state, local or other governmental agency or authority.
"Ground Segment Hardware" shall have the meaning assigned thereto in
Section 2(b)(i).
"Initial Purchase" shall have the meaning assigned thereto in Section
2(b)(i).
"Licensee System" shall have the meaning assigned thereto in the
Service License Agreement.
"On-Site Technical Assistance Services" shall have the meaning
assigned thereto in Section 8(a).
"ORBCOMM Gateway" shall mean the facilities consisting of
dual-antenna, redundant gateway Earth stations ("XXXx"), computers, displays,
control consoles, communications equipment and other hardware that transport
and control the flow of data and message communications and other information
for the ORBCOMM System. An ORBCOMM Gateway shall be deemed to include one GES
and may be expanded through the addition of supplemental XXXx.
"ORBCOMM Gateway Software License Agreement" shall mean the ORBCOMM
Gateway Software License Agreement dated October 15, 1996 between ORBCOMM and
Licensee.
"Other Services" shall have the meaning assigned thereto in Section 8.
"Permits" shall mean approvals, licenses, authorizations and permits.
"Provisioning Services" shall have the meaning assigned thereto in the
ORBCOMM Gateway Software License Agreement.
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"Point-of-Entry" shall have the meaning assigned thereto in Section
5(a).
"Related Services" shall have the meaning assigned thereto in Section
2(b)(i).
"Satellites" shall mean any of the low-Earth orbit satellites
comprising the constellation portion of the ORBCOMM System
"Satellite Usage Fees" shall have the meaning assigned in the Service
License Agreement.
"Service License Agreement" shall mean the Service License Agreement
dated October 15, 1996 by and between ORBCOMM and Licensee.
"Successful Launch" shall have the meaning assigned thereto in the
Service License Agreement.
"Supplemental GES Acceptance Test" shall have the meaning assigned
thereto in Section 2(d)(ii).
"Supplemental GES Acceptance Test Certificate" shall have the meaning
assigned thereto in Section 4(b).
"System Available Date" shall have the meaning assigned thereto in the
Service License Agreement.
"Telephonic Support Services" shall have the meaning assigned therein
in Section 8(b).
"Territory" shall have the meaning assigned thereto in the Service
License Agreement.
"Warranty Period" shall have the meaning assigned thereto in Section
6(a).
SECTION 2 - PURCHASE OF GROUND SEGMENT HARDWARE
(a) Ground Segment Design. To the fullest extent permitted by
law, the parties to this Contract acknowledge and agree that the hardware and
software that comprise the ORBCOMM Gateway are a collection of custom-developed
hardware and software or customized adaptations of commercially available
hardware and software that have been configured for the ORBCOMM System
messaging application and have been designed to ensure that more than one
licensee can use the ORBCOMM System to provide ORBCOMM Services. To the
fullest extent permitted by law, the parties further acknowledge and agree that
(i) it is critical that licensee systems not interfere with each other and (ii)
to ensure that mutually compatible operations can take place, it is essential
that, on the terms and conditions set forth herein, (A) Licensee purchase from
ORBCOMM, the ORBCOMM Gateway hardware specified herein to be used in the
Territory and (B) such ORBCOMM Gateway hardware be installed, integrated and
tested by ORBCOMM.
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(b) Purchase and Sale of ORBCOMM Gateway Hardware and Related
Services. (i) In accordance with the terms and conditions specified herein,
Licensee is procuring for the Territory, either directly or through a wholly
owned subsidiary, the ORBCOMM Gateway hardware described in Attachment 1 to
this Contract (the "Ground Segment Hardware"), which ORBCOMM Gateway shall
incorporate at least [CONFIDENTIAL TREATMENT] XXXx (the "Initial Purchase").
In connection with the purchase of the Ground Segment Hardware, Licensee shall
procure the related construction, installation, integration, test and training
services necessary to construct, install and operate the Ground Segment
Hardware in the Territory as more fully described in Attachment 2 to this
Contract (the "Related Services").
(ii) (A) The order for the Initial Purchase is deemed placed and
accepted pursuant to this Contract on the Effective Date.
(B) The parties further agree that with the consent of ORBCOMM, which
consent shall not be unreasonably withheld, supplemental XXXx to the ORBCOMM
Gateway for the Territory after the Initial Purchase may be shared between
Licensee and another ORBCOMM System service licensee if Licensee contracts with
such another ORBCOMM System service licensee to share the use of such other
service licensee's XXXx. ORBCOMM shall be entitled to perform any and all
tests it deems, in its reasonable opinion, to be necessary or appropriate to
ensure the proper functioning and operation of the shared ground segment
hardware. Licensee shall immediately notify ORBCOMM of the occurrence of an
event of default or an event that with the giving of notice or lapse of time,
or both, would result in an event of default under such agreement or the
receipt of a notice of termination under such agreement. If such agreement is
terminated, within 30 days of such termination, Licensee shall (x) place an
order with ORBCOMM for the purchase of the necessary Ground Segment Hardware or
(y) enter into a contract with another ORBCOMM System service licensee to share
use of such service licensee's GES but only if the terms and conditions set
forth in this Section are otherwise satisfied. A copy of any such contract,
with a certified translation into English, if necessary, shall be provided to
ORBCOMM.
(c) Additional Licensee Responsibilities. Licensee shall:
(i) Consult with ORBCOMM on the location of the ORBCOMM
Gateway including all the XXXx to ensure technical compatibility with
the ORBCOMM network plan and locate the XXXx such that ORBCOMM
Services may be provided in all parts of the Territory consistent with
the objective of maximizing ORBCOMM Service availability to
Subscribers, provided that the actual level of such service shall be
within Licensee's reasonable business judgment; and provided further
that the first GES in the Initial Purchase shall be located at Fucino;
and provided further, that so long as Licensee complies with the terms
of this Section 2(c), Licensee shall be entitled to select the
location of all XXXx in the License System;
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(ii) Make available for use, within six months of placing
any order for the Ground Segment Hardware and the Related Services,
the land, buildings, utilities and facilities consistent with the
specifications set forth in Attachment 0X (xxx "Xxxxxxx Facilities and
Environmental Specifications") and shall provide the services set
forth in Attachment 3B;
(iii) Be responsible and arrange for import of the Ground
Segment Hardware into the country or countries of destination, in
connection therewith, obtain all necessary Permits from all applicable
Governmental Authorities needed for the import of the Ground Segment
Hardware into the country or countries of destination, pay all
insurance costs and expenses incurred by ORBCOMM to insure the Ground
Segment Hardware from the Point-of-Entry through delivery of the
Gateway Acceptance Test Certificate or the Supplemental GES Acceptance
Test Certificate, as the case may be, and arrange and pay for all
transportation costs and expenses for the Ground Segment Hardware from
the Point-of-Entry to the installation site;
(iv) Within 90 days of the Effective Date, negotiate in
good faith with ORBCOMM and comply with the terms and conditions of a
mutually agreed plan for the implementation, including installation
and test, of the Licensee System including the ORBCOMM Gateway (the
"Gateway Implementation Plan");
(v) Pay any and all import or customs duties, fees, taxes
or other amounts imposed by any Governmental Authority in the
Territory applicable to the purchase of any portion of the Ground
Segment Hardware; and
(vi) Comply in all material respects with all applicable
laws, rules and regulations of any Governmental Authority in the
performance of its obligations hereunder.
(d) ORBCOMM Responsibilities. ORBCOMM shall:
(i) Consult with Licensee on the location of the ORBCOMM
Gateway including all the XXXx to ensure technical compatibility with
the ORBCOMM network plan;
(ii) Have provided to Licensee on or about October 1, 1996
the Gateway Product Specifications, and shall provide Licensee with
the acceptance test procedures 60 days prior to the date of the
Gateway Acceptance Test as specified in the Gateway Implementation
Plan (which test procedures shall be subject to the approval of
Licensee, which approval shall not be unreasonably withheld) for (A)
performing an acceptance test designed to ensure and certify that the
ORBCOMM Gateway meets the requirements of the Gateway Product
Specifications, which Specifications shall require that all the
software provided pursuant to the ORBCOMM Gateway Software License
Agreement
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work on an integrated basis as a system with the Ground Segment
Hardware provided hereunder (the "Gateway Acceptance Test") and (B)
performing an acceptance test of supplemental XXXx added after the
initial Gateway Acceptance Test (the "Supplemental GES Acceptance
Test");
(iii) On the terms and conditions set forth herein, provide
the Ground Segment Hardware, perform the Related Services and perform
the Gateway Acceptance Test, to the extent required, perform
Supplemental GES Acceptance Tests, and at the time of the shipment of
the first GES in the Initial Purchase, provide Licensee with a list of
recommended spare parts inventory for the Ground Segment Hardware;
(iv) Within 90 days of the Effective Date, negotiate in
good faith with Licensee and comply with the terms and conditions of
the Gateway Implementation Plan;
(v) Provide Licensee, in accordance with the Gateway
Implementation Plan, written operating and maintenance manuals for the
ORBCOMM Gateway to be located in the Territory;
(vi) Comply in all material respects with all applicable
laws, rules and regulations of any Governmental Authority in the
performance of its obligations hereunder;
(vii) Obtain (A) all necessary Permits from all applicable
Governmental Authorities needed for the export of the Ground Segment
Hardware from the United States of America (or from such other country
where the hardware is manufactured or sold) to the country or
countries of destination and, to the extent necessary, the rendering
of the Related Services or the Other Services in such country or
countries and (B) all necessary visas and work permits for its
personnel who will be traveling to such country or countries to
perform any of the Related Services or Other Services; provided,
however, that at ORBCOMM's request, Licensee shall assist ORBCOMM in
obtaining such visas and work permits from the appropriate
Governmental Authorities located in the Territory;
(viii) On transfer of title to the Ground Segment Hardware,
provide Licensee with good and marketable title to such Ground Segment
Hardware, free and clear of and from all claims, liens, charges or
encumbrances of any kind arising by or through ORBCOMM; and
(ix) Provide Licensee with a written breakdown of prices
charged for the Ground Segment Hardware and Related Services, in a
form suitable for the determination of import duties and other taxes,
if any, no later than one month after the orders by Licensee for such
Ground Segment Hardware have been received by ORBCOMM, provided that
such written breakdown shall be provided to and used by Licensee only
for the purpose set forth in this Section 2(d)(ix).
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SECTION 3 - CONSIDERATION AND PAYMENT TERMS
(a) Consideration. In consideration of ORBCOMM selling to
Licensee the Ground Segment Hardware and the Related Services, Licensee agrees
to pay the following amounts to ORBCOMM:
(i) For the Initial Purchase, consisting of the Ground
Segment Hardware and the Related Services for the ORBCOMM Gateway
incorporating [CONFIDENTIAL TREATMENT] GES, [CONFIDENTIAL TREATMENT]
and for the [CONFIDENTIAL TREATMENT] GES and associated Related
Services comprising the Initial Purchase, [CONFIDENTIAL TREATMENT];
and
(ii) For each supplemental GES and associated Related
Services, [CONFIDENTIAL TREATMENT].
The prices set forth above shall remain in effect for orders placed on
or before [CONFIDENTIAL TREATMENT]. For any orders placed during
[CONFIDENTIAL TREATMENT], the prices set forth above shall be adjusted
by an amount that is [CONFIDENTIAL TREATMENT], provided, however, that
any increase shall not be more than [CONFIDENTIAL TREATMENT] percent.
For orders placed after [CONFIDENTIAL TREATMENT], to the fullest
extent provided by law, ORBCOMM reserves the right to set such prices
as it deems appropriate so long as such prices are [CONFIDENTIAL
TREATMENT] with similar terms and conditions. Any and all import or
customs duties, fees, taxes or other amounts imposed by any
Governmental Authority in the Territory applicable to the purchase of
the Ground Segment Hardware shall be paid by Licensee and shall be in
addition to the amounts set forth above.
(b) Payment Terms. (i) Subject to the terms and conditions
specified in Section 5(b), for the [CONFIDENTIAL TREATMENT] GES in the Initial
Purchase, Licensee shall pay to ORBCOMM (A) [CONFIDENTIAL TREATMENT] percent of
the applicable price specified in Section 3(a)(i), at the time [CONFIDENTIAL
TREATMENT], (B) [CONFIDENTIAL TREATMENT] percent upon receipt by Licensee of
[CONFIDENTIAL TREATMENT], and (C) [CONFIDENTIAL TREATMENT] percent on delivery
of the [CONFIDENTIAL TREATMENT]; provided, however, that in the event it is not
possible to complete [CONFIDENTIAL TREATMENT] as a result of the [CONFIDENTIAL
TREATMENT], the amount of the final payment shall be due and payable;
(ii) For the [CONFIDENTIAL TREATMENT] GES in the Initial Purchase,
Licensee shall pay to ORBCOMM (A) [CONFIDENTIAL TREATMENT] percent of the
applicable price specified in Section 3(a)(i), at the time [CONFIDENTIAL
TREATMENT], (B) [CONFIDENTIAL TREATMENT] percent on [CONFIDENTIAL TREATMENT],
(C) [CONFIDENTIAL TREATMENT] percent on [CONFIDENTIAL TREATMENT] and (D)
[CONFIDENTIAL TREATMENT] percent on the later of (x) [CONFIDENTIAL TREATMENT]
and (y) [CONFIDENTIAL TREATMENT]; provided, however, that in the event it is
not possible to complete [CONFIDENTIAL TREATMENT] as a result of the
[CONFIDENTIAL TREATMENT], the amount of the final payment shall be due and
payable.
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(iii) For any supplemental GES, Licensee shall pay ORBCOMM (i)
[CONFIDENTIAL TREATMENT] percent of the applicable price specified in Section
3(a)(ii) at the time [CONFIDENTIAL TREATMENT], or at the time [CONFIDENTIAL
TREATMENT], (ii) [CONFIDENTIAL TREATMENT] percent upon receipt by Licensee of
[CONFIDENTIAL TREATMENT], and (iii) [CONFIDENTIAL TREATMENT] percent on
[CONFIDENTIAL TREATMENT]; provided, however, that in the event it is not
possible to complete [CONFIDENTIAL TREATMENT] as a result of the [CONFIDENTIAL
TREATMENT] the amount of the final payment shall be due and payable.
(iv) [CONFIDENTIAL TREATMENT]
SECTION 4 - INSPECTION AND ACCEPTANCE; TRANSFER OF TITLE
(a) Inspection. Prior to shipment of any portion of the Ground
Segment Hardware, ORBCOMM shall conduct a pre-shipment integration test that
confirms that all elements of the Ground Segment Hardware to be shipped are
properly integrated and work in accordance with the Gateway Product
Specifications. Such pre-shipment integration test shall be performed at an
integration facility or facilities and at a time specified by ORBCOMM. ORBCOMM
shall provide Licensee with [CONFIDENTIAL TREATMENT] weeks notice of the time
and location of such pre-shipment integration test, and Licensee shall be
entitled to witness such test. On successful completion of the pre-shipment
integration test, ORBCOMM shall provide Licensee with a Pre-Shipment
Integration Test Certificate, the form of which shall be attached as an exhibit
to the Gateway Implementation Plan.
(b) Acceptance. The Ground Segment Hardware shall be accepted in
accordance with the Gateway Acceptance Test or the Supplemental GES Acceptance
Test, as the case may be. The Gateway Acceptance Test or the Supplemental GES
Acceptance Test, as the case may be, shall take place at the location where the
Ground Segment Hardware is to be installed and used by Licensee. The Gateway
Acceptance Test or Supplemental GES Acceptance Test, as the case may be, shall
be scheduled at a mutually convenient time within [CONFIDENTIAL TREATMENT] days
after ORBCOMM notifies Licensee that installation of Ground Segment Hardware is
complete. Licensee shall satisfy itself during the Gateway Acceptance Test or
Supplemental GES Acceptance Test that the Ground Segment Hardware being
installed conforms to the requirements set forth in such tests. Within
[CONFIDENTIAL TREATMENT] days after the Gateway Acceptance Test or Supplemental
GES Acceptance Test, Licensee shall give written notice of any claim, together
with supporting documentation thereof, that any Ground Segment Hardware has
failed to pass any of the tests prescribed in the applicable Gateway Acceptance
Test plan or Supplemental GES Acceptance Test plan. After successful
completion of the Gateway Acceptance Test or Supplemental GES Acceptance Test,
as the case may be, ORBCOMM and Licensee shall execute a certificate certifying
that the Ground Segment Hardware for which such test was performed successfully
passed the Gateway Acceptance Test (the "Gateway Acceptance Test Certificate")
or the Supplemental GES Acceptance Test (the "Supplemental GES Acceptance Test
Certificate"), as the case may be, provided that ORBCOMM and Licensee may
identify non-material deficiencies in the Ground Segment Hardware that will be
placed on a mutually agreed
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punch list, the completion of which shall not affect delivery, acceptance,
payment or transfer of title for such Ground Segment Hardware; [CONFIDENTIAL
TREATMENT]. If Licensee (i) fails to participate in the Gateway Acceptance
Test or Supplemental GES Acceptance Test, (ii) fails to notify ORBCOMM as
required by this Section 4(b), or (iii) uses the Ground Segment Hardware for
any purposes other than testing in connection with the acceptance testing
process set forth herein, Licensee agrees that it shall be deemed to have
executed the Gateway Acceptance Test Certificate or the Supplemental GES
Acceptance Test Certificate, as the case may be.
(c) Transfer of Title and Risk of Loss. Title to the Ground
Segment Hardware delivered hereunder shall pass to Licensee on delivery of the
Gateway Acceptance Test Certificate or the Supplemental GES Acceptance Test
Certificate, as the case maybe, and receipt of final payment for such Ground
Segment Hardware. Risk of loss with respect to the Ground Segment Hardware
delivered hereunder shall pass to Licensee on delivery of the Gateway
Acceptance Test Certificate or the Supplemental GES Acceptance Test
Certificate, as the case maybe.
SECTION 5 - DELIVERY
(a) Delivery. ORBCOMM shall transport the Ground Segment Hardware
CIP to a major seaport, airport or such other location in the Territory for
delivery as the parties may mutually agree on (the "Point-of-Entry"). As
specified in Sections 2(c)(iii) and (v), Licensee as importer of the Ground
Segment Hardware shall effect customs clearance and pay all fees, import
duties, tariffs and taxes associated therewith. Any demurrage arising from
customs clearance shall be to the account of Licensee. Licensee shall accept
delivery of the Ground Segment Hardware on unloading, before it clears customs,
at the Point-of-Entry. Licensee shall arrange and pay for the transport of the
Ground Segment Hardware from the Point-of-Entry to the installation site(s)..
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(b) Schedule for Delivery. The schedule for delivery of the
Ground Segment Hardware by ORBCOMM shall be established in the Gateway
Implementation Plan, provided that the ORBCOMM Gateway incorporating
[CONFIDENTIAL TREATMENT] GES shall be installed in the Territory and accepted
by [CONFIDENTIAL TREATMENT] and the [CONFIDENTIAL TREATMENT] GES comprising the
Initial Purchase shall be installed in the Territory and accepted within
[CONFIDENTIAL TREATMENT] days of [CONFIDENTIAL TREATMENT] both parties hereto
acknowledge and agree that to the extent ORBCOMM has used all commercially
reasonable efforts to meet the schedule for installation of the Ground Segment
Hardware, ORBCOMM shall not be liable for any damages or other claims caused by
the failure to meet such schedule or any other changes or delays to such
schedule. With respect to the Initial Purchase comprising the [CONFIDENTIAL
TREATMENT] GES, the [CONFIDENTIAL TREATMENT] shall apply in the event the
[CONFIDENTIAL TREATMENT] for the Initial Purchase comprising [CONFIDENTIAL
TREATMENT] GES is [CONFIDENTIAL TREATMENT] provided that the dates set forth
below shall be adjusted [CONFIDENTIAL TREATMENT] for each [CONFIDENTIAL
TREATMENT] day [CONFIDENTIAL TREATMENT]:
(i) [CONFIDENTIAL TREATMENT] and thereafter is
[CONFIDENTIAL TREATMENT] on or prior to [CONFIDENTIAL TREATMENT], U.S.
[CONFIDENTIAL TREATMENT], provided that such [CONFIDENTIAL TREATMENT]
accordingly if the [CONFIDENTIAL TREATMENT] is [CONFIDENTIAL
TREATMENT] during such period;
(ii) [CONFIDENTIAL TREATMENT] and thereafter is
[CONFIDENTIAL TREATMENT] on or prior to [CONFIDENTIAL TREATMENT], an
additional U.S. [CONFIDENTIAL TREATMENT], provided that such
[CONFIDENTIAL TREATMENT] accordingly if the [CONFIDENTIAL TREATMENT]
during such period;
(iii) [CONFIDENTIAL TREATMENT] and thereafter is
[CONFIDENTIAL TREATMENT] on or prior to [CONFIDENTIAL TREATMENT], an
additional U.S. [CONFIDENTIAL TREATMENT], provided that such
[CONFIDENTIAL TREATMENT] accordingly if the [CONFIDENTIAL TREATMENT]
during such period;
(iv) [CONFIDENTIAL TREATMENT] and thereafter is issued on
or prior to [CONFIDENTIAL TREATMENT], an additional U.S. [CONFIDENTIAL
TREATMENT], provided that such [CONFIDENTIAL TREATMENT] accordingly if
the [CONFIDENTIAL TREATMENT] is [CONFIDENTIAL TREATMENT] during such
period;
(v) [CONFIDENTIAL TREATMENT] and thereafter is issued on
or prior to [CONFIDENTIAL TREATMENT] an additional U.S. [CONFIDENTIAL
TREATMENT], provided that such [CONFIDENTIAL TREATMENT] accordingly if
the [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] during such
month, up to a maximum of [CONFIDENTIAL TREATMENT], shall be a
[CONFIDENTIAL TREATMENT] as specified in [CONFIDENTIAL TREATMENT];
and
(vi) [CONFIDENTIAL TREATMENT]. In such event and in
addition to the rights set forth in [CONFIDENTIAL TREATMENT] Licensee
shall be entitled to be promptly
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[CONFIDENTIAL TREATMENT], in which event this Contract shall
[CONFIDENTIAL TREATMENT] without further action on the.
The parties agree that the foregoing shall be the sole and exclusive
of Licensee for any.
(c) Liens. So long as there remains any unpaid amount by Licensee
to ORBCOMM hereunder, Licensee shall not permit, allow or suffer the attachment
of any lien, charge or encumbrance of any kind on any of the Ground Segment
Hardware and Licensee shall pay when due any assessments, levies, fees, taxes,
duties or other charges against the Ground Segment Hardware.
SECTION 6 - GROUND SEGMENT HARDWARE WARRANTY
(a) Warranty. (i) Notwithstanding delivery and acceptance by
Licensee of the Ground Segment Hardware as provided in Sections 4 and 5 and
subject to the warranty conditions in this Section 6, ORBCOMM hereby warrants
that, for a period of [CONFIDENTIAL TREATMENT] months after the successful
completion of the Gateway Acceptance Test or the Supplemental Gateway
Acceptance Test, as the case may be, provided that such [CONFIDENTIAL
TREATMENT] months shall be reduced day-for-day for each day any portion of the
Ground Segment Hardware remains in customs at the Point-of-Entry in excess of
[CONFIDENTIAL TREATMENT] calendar days (so long as such customs delay is not
the result of the failure of ORBCOMM to provide the necessary customs shipment
documentation) and for each day where Licensee has failed to perform its
obligations hereunder (the "Warranty Period"), the Ground Segment Hardware
shall be free from defects in material and workmanship and shall operate and
conform in all material respects with the performance capabilities,
specifications, functions and other descriptions set forth in the Gateway
Product Specifications. ORBCOMM shall, at its expense, repair or replace any
Ground Segment Hardware that does not conform to such warranty. ORBCOMM's
obligation during the Warranty Period shall be limited to repair or replacement
of any Ground Segment Hardware for which it has provided a warranty hereunder.
Notice of all claimed defects must be provided in writing to ORBCOMM within the
Warranty Period. ORBCOMM shall determine after inspection that the product or
part was defective and if ORBCOMM determines that such product or part was not
defective, ORBCOMM shall provide Licensee with prompt written notice of such
determination. Any Ground Segment Hardware repaired or replaced shall be
subject only to the original Warranty Period, [CONFIDENTIAL TREATMENT]. The
warranty set forth herein is Licensee's exclusive remedy against ORBCOMM for
any defective Ground Segment Hardware.
(ii) The warranty set forth herein shall not extend to any portion
of the Ground Segment Hardware that, upon ORBCOMM's or its subcontractors'
examination is found to have been (A) mishandled, misused or subject to
negligence, accident or abuse by Licensee or its officers, employees,
contractors, representatives, agents or consultants (other than ORBCOMM), (B)
operated or maintained contrary to ORBCOMM's specifications or instructions or
otherwise
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used improperly, (C) tampered with or damaged as evidenced by, for example,
broken seals, unauthorized modifications, damaged packaging containers and the
like, (D) repaired and/or altered by anyone other than ORBCOMM or its
subcontractors without ORBCOMM's prior written approval, which approval shall
not be unreasonably withheld or (E) delivered to ORBCOMM not in conformance in
all material respects with the notice requirements set forth herein.
(b) Place of Repair. During the Warranty Period, ORBCOMM shall
have the option to repair the defective goods on-site or, if feasible, require
that the goods be returned to its or its designee's facilities, provided that
all shipping and insurance costs associated with shipment of defective goods to
ORBCOMM's designated repair facility shall be paid by Licensee and all shipping
and insurance costs associated with return shipment of repaired goods shall be
paid by ORBCOMM; and provided further, that items found not to be defective
shall be returned at Licensee's expense.
(c) Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED IN THIS CONTRACT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ORBCOMM SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES
WHATSOEVER WITH RESPECT TO THE GROUND SEGMENT HARDWARE, THE RELATED SERVICES OR
THE OTHER SERVICES TO BE PROVIDED UNDER THIS CONTRACT. EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS CONTRACT, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ORBCOMM EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY
WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES OF ORBCOMM, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO, INCLUDING, BUT NOT
LIMITED TO, (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (iii) ANY WARRANTIES AS TO
THE ACCURACY, AVAILABILITY OR CONTENT OF THE GROUND SEGMENT HARDWARE, THE
RELATED SERVICES OR THE OTHER SERVICES PROVIDED BY OR THROUGH ORBCOMM UNDER
THIS CONTRACT; AND (iv) ANY WARRANTY UNDER ANY THEORY OF LAW, INCLUDING ANY
TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE
THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT
LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT
CONTAINED IN THIS CONTRACT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM.
(d) Limitation of Liabilities. NOTWITHSTANDING ANYTHING CONTAINED
HEREIN TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY HAVE ANY OBLIGATION,
LIABILITY, RIGHT, CLAIM OR REMEDY TO THE OTHER UNDER THIS CONTRACT FOR LOSS OF
USE, REVENUE OR PROFIT OR FOR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES. In addition, in no event shall any liability
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of ORBCOMM exceed an amount equal to [CONFIDENTIAL TREATMENT].
SECTION 7 - GROUND SEGMENT HARDWARE CHANGES
ORBCOMM reserves the right to change on terms that are commercially
reasonable and only to the extent necessary, any of the terms, conditions and
provisions of Sections 2, 3, 4, 5 or 6 that ORBCOMM deems are reasonably
necessary if any applicable law in the Territory requires that (a) ORBCOMM
change the design of the Ground Segment Hardware or (b) any elements of the
Ground Segment Hardware be procured in the Territory.
SECTION 8 - OTHER SERVICES
Upon the written request of Licensee, ORBCOMM shall provide to
Licensee the following additional services (collectively, the "Other
Services"):
(a) On-Site Technical Assistance Services. (i) In
addition to the Related Services, ORBCOMM shall provide Licensee
On-Site Technical Assistance Services in accordance with the terms of
this Contract. On-Site Technical Assistance Services consist of
sending ORBCOMM personnel or subcontractors to the Licensee's
facilities to provide advice, assistance, training and retraining to
Licensee's employees and customers. The number and technical
background of the personnel, and the estimated amount of time they are
to spend at Licensee's facilities, are to be mutually agreed by the
parties prior to the dispatch of the ORBCOMM personnel.
(ii) For each On-Site Technical Assistance Service,
Licensee agrees to pay to ORBCOMM U.S. [CONFIDENTIAL TREATMENT] per
person per eight hour day, five day work week, including [CONFIDENTIAL
TREATMENT] and all days spent [CONFIDENTIAL TREATMENT], whether
[CONFIDENTIAL TREATMENT], plus [CONFIDENTIAL TREATMENT] round trip
transportation costs and overtime pay at the rate of [CONFIDENTIAL
TREATMENT] per hour for all hours worked over eight hours a day or
over 40 hours per week. The prices set forth herein shall remain in
effect for On-Site Technical Assistance Services provided on or before
[CONFIDENTIAL TREATMENT].
(b) Telephonic Support Services. (i) ORBCOMM shall
provide Licensee Telephonic Support Services (including communications
made via an ORBCOMM-approved secure email system) in accordance with
the terms of this Contract. Telephonic Support Services consist of
telephonic technical and operational advice concerning the Licensee
System including the ORBCOMM Gateway installed in the Territory;
provided that Telephonic Support Service shall not include
Provisioning Services, which Provisioning Services will be provided
pursuant to the ORBCOMM Gateway Software License Agreement. Such
advice shall be provided by a qualified engineer or technician and
shall only be available between the hours of 9:00 a.m. and 5:00 p.m.
United Xxxxxx
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00
Xxxxxxx Xxxxxxxx Xxxx (xx Xxxxxx Xxxxxx Eastern Daylight Time as
applicable) on regular business days until the System Available Date
and thereafter shall be available seven days a week, 24 hours a day.
(ii) For Telephonic Support Services, Licensee agrees to
pay to ORBCOMM U.S. [CONFIDENTIAL TREATMENT] per hour or any fraction
thereof. The prices set forth herein shall remain in effect for
Telephonic Support Services provided on or before [CONFIDENTIAL
TREATMENT].
(c) Payment Terms. On completion of the Other Services,
ORBCOMM shall invoice Licensee for the full cost of the Other Services
performed. All amounts set forth on such invoices shall be paid to
ORBCOMM by Licensee within [CONFIDENTIAL TREATMENT] days of the
receipt by Licensee of such invoice.
SECTION 9 - EVENTS OF DEFAULT
(a) ORBCOMM Events of Default. This Contract may be terminated by
Licensee at any time after the occurrence of any of the following events of
default:
(i) ORBCOMM shall fail to observe or perform any of its
obligations under this Contract, and, except as provided in Section
5(b)(vi) or Section 9(a)(ii), such failure shall remain uncured for a
period of [CONFIDENTIAL TREATMENT] days after receipt by ORBCOMM of
written notice thereof;
(ii) ORBCOMM shall fail to observe or perform any of its
obligations under Section 6(a) and with respect to the repair or
replacement of any portion of the GES, such failure shall remain
uncured for a period of [CONFIDENTIAL TREATMENT] days after receipt by
ORBCOMM of written notice thereof and in the case of the repair or
replacement of any other portion of the ORBCOMM Gateway, such failure
shall remain uncured for a period of [CONFIDENTIAL TREATMENT] days
after receipt by ORBCOMM of written notice thereof; or
(iii) Licensee shall have terminated the Service License
Agreement pursuant to Section 9(b)(i) or 9(b)(iii) thereof.
(b) Licensee Events of Default. This Contract may be terminated
by ORBCOMM at any time after the occurrence of any of the following events of
default:
(i) Licensee shall fail to pay any amount due under this
Contract within [CONFIDENTIAL TREATMENT] days after receipt of notice
from ORBCOMM that such amount is due;
(ii) Licensee shall fail to observe or perform any of its
obligations under this
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Contract (other than breaches specified in Sections 9(b)(i)), and such
failure shall remain uncured for a period of [CONFIDENTIAL TREATMENT]
days after receipt by Licensee of written notice thereof; or
(iii) ORBCOMM shall have terminated the Service License
Agreement pursuant to Section 9(b)(ii) thereof.
(c) Remedies On Termination. Subject to Sections 6(c) and 6(d),
termination of this Contract by the party not in default in accordance with the
terms hereof shall be without prejudice to any other rights or remedies such
party shall have by law.
(d) Obligations After Termination. The obligations set forth in
Sections 6(c), 6(d), 10, 11(e), 11(k), 11(l) and 11(o) and those obligations
that relate to any amounts due and owing for any periods prior to termination
or expiration of this Contract shall survive such termination or expiration.
SECTION 10 - DISPUTE RESOLUTION
(a) Subject to the provisions of Section 11(o), in the event of a
claim or controversy regarding any matter covered by this Contract, ORBCOMM and
Licensee shall use all reasonable efforts to resolve such claim or controversy
within 60 calendar days of receipt by either party of notice of the existence
of any such claim or controversy. In the event the parties are unable to agree
on the resolution of such claim or controversy within such period of time,
either party may remove the claim or controversy for settlement by final and
binding arbitration in New York, NY, in accordance with the then existing
United States domestic rules of the American Arbitration Association ("AAA")
(to the extent not modified by this Section). In the event that more than one
claim or controversy arises under this Contract, such disputes may be
consolidated in a single arbitral proceeding. The arbitral tribunal shall be
composed of three arbitrators. Each of ORBCOMM and Licensee shall appoint one
arbitrator. If any party shall fail to appoint an arbitrator within 30 days
from the date on which the other party's request for arbitration has been
communicated to the first party, such appointment shall be made by the AAA. The
two arbitrators so appointed shall agree upon the third arbitrator who shall
act as chairman of the arbitral tribunal and who have significant operational
expertise in geographically distributed data communications networks. If the
two appointed arbitrators fail to nominate a chairman within ten days from the
date as of which both arbitrators shall have been appointed, such chairman
shall be selected by the AAA. In all cases, the arbitrators shall be fluent in
English. Judgment upon any award rendered by the arbitrators may be entered in
any court having jurisdiction or application may be made for judicial
acceptance of the award and an order of enforcement, as the case may be. The
parties agree that if it becomes necessary for any party to enforce an arbitral
award by a legal action or additional arbitration or judicial methods, the
party against whom enforcement is sought shall pay all reasonable costs and
attorney's fees incurred by the party seeking to enforce the award.
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(b) Pending a final determination by the arbitrators, if the claim
or controversy concerns the payment by Licensee of any fees or amounts due
hereunder (including the right to conduct an audit of such fees or amounts),
ORBCOMM shall have the right to terminate Licensee's access to the ORBCOMM
System unless Licensee posts a bond from a reputable bonding company covering
in full the amount of the disputed payment In the event ORBCOMM elects to
exercise such right and notwithstanding any determination by the arbitrators,
Licensee's sole remedies for such termination by ORBCOMM shall be an extension
of the term of this Contract equal to the period during which Licensee was
denied access to the ORBCOMM System and in the event the arbitrators determine
that Licensee did not owe ORBCOMM any fees or amounts and Licensee posted a
bond as specified herein, ORBCOMM shall be obligated to [CONFIDENTIAL
TREATMENT].
(c) Except with respect to the application of Section 11(o)
hereof, the rights of the parties under this Section 10 shall be the exclusive
remedy with respect to any claim or controversy regarding any matter covered by
this Contract.
SECTION 11 - MISCELLANEOUS
(a) Compliance With Laws. Each of the parties shall comply in all
material respects with all applicable laws, rules and regulations of any
applicable Governmental Authority in the performance of its obligations
hereunder. In particular, Licensee agrees to comply with all applicable laws
of the United States regarding export controls, international traffic in arms
regulations and foreign corrupt practices. In addition, but not in limitation
of the foregoing, summaries of the current provisions of the United States
Federal International Traffic in Arms Regulations and of the Prohibited Foreign
Trade Practices Act are set forth in Attachment 5.
(b) Notices. All notices given under this Contract must be in
writing and sent by hand delivery, by overnight courier, by facsimile
transmission (answer back received) or by international registered mail, return
receipt requested and postage prepaid, to:
ORBCOMM:
ORBCOMM International Partners, L.P.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000, XXX.
Telecopy: x0.000.000.0000
Attention: Senior Vice President, Engineering and
Operations
with a copy to:
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ORBCOMM Global, L.P.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000, XXX
Telecopy: x0.000.000.0000
Attention: Vice President and General Counsel
Licensee:
European Company for Mobile
Communicator Services, B.V., ORBCOMM Europe
-----------------------------------
-----------------------------------
-----------------------------------
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to either Licensee or ORBCOMM shall
be effective the earlier of (i) ten business days after the date of mailing by
sender, or (ii) the date of actual receipt.
(c) Successors and Assigns. This Contract shall be binding upon
the parties, their successors and permitted assigns. Subject to Section 10 of
the Service License Agreement, neither this Contract nor any interests or
duties of Licensee hereunder may be assigned in whole or in part (by operation
of law or otherwise) by Licensee without the express written consent of
ORBCOMM, which consent shall not be unreasonably withheld.
(d) Entire Agreement. This Contract and all attachments (which
are hereby made part of this Contract), the Service License Agreement and the
ORBCOMM Gateway Software License Agreement contain the entire understanding
between Licensee and ORBCOMM and supersede all prior written and oral
understandings relating to the subject hereof. No representations, agreements,
modifications or understandings not contained herein shall be valid or
effective unless agreed to in writing and signed by both parties. Any
modification or amendment of this Contract must be in writing and signed by
both parties.
(e) Governing Law and Jurisdiction. (i) The construction,
interpretation and performance of this Contract, as well as the legal relations
of the parties arising hereunder, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflict or choice of law provisions thereof. The United Nations Convention on
Contracts for the International Sale of Goods (1980) shall not apply to any
provisions of this Contract. Neither party may bring any action for a claim
under this Contract later than one year after the termination of this Contract;
provided that claims under any provision of this Contract that survives
termination of this Contract may be brought within one year of the later of the
occurrence of the event giving rise to the claim and actual knowledge thereof
by the party
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asserting such claim.
(ii) For purposes of Section 11(o), Licensee by its execution hereof
(A) hereby irrevocably submits to the nonexclusive jurisdiction of the state
courts of the State of New York and to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York, for the
purpose of any suit, action or other proceeding arising out of or based upon
this Contract or the subject matter hereof brought by ORBCOMM and (B) hereby
waives to the extent not prohibited by law, and agrees not to assert, by way of
motion, as a defense or otherwise, in any such proceeding, any claims that it
is not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that this
Contract or the subject matter hereof may not be enforced in or by such court.
Licensee hereby consents to service of process in any such proceeding in any
manner permitted by the laws of the State of New York and agrees that service
of process by international registered mail, return receipt requested, at the
address specified in or pursuant to Section 11(b) hereof is reasonably
calculated to give actual notice. Licensee agrees that at ORBCOMM's request it
will appoint an agent for service of process within the State of New York.
(f) Force Majeure. Neither party shall be held responsible for
failure or delay in performance or delivery if such failure or delay is the
result of an act of God, the public enemy, embargo, governmental act, fire,
accident, war, riot, strikes, inclement weather or other cause of a similar
nature that is beyond the control of the parties. In the event of such
occurrence, this Contract shall be amended by mutual agreement to reflect an
extension in the period of performance and/or time of delivery. Failure to
agree on an equitable extension shall be considered a claim or controversy and
resolved in accordance with Section 10.
(g) Waiver. It is understood and agreed that no failure or delay
by either ORBCOMM or Licensee in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege hereunder. No waiver of any
terms or conditions of this Contract shall be deemed to be a waiver of any
subsequent breach of any term or condition. All waivers must be in writing and
signed by the party sought to be bound.
(h) Severability. If any part of this Contract shall be held
unenforceable, the remainder of this Contract will nevertheless remain in full
force and effect.
(i) Headings. Headings in this Contract are included for
convenience of reference only and shall not constitute a part of this Contract
for any other purpose.
(j) Independent Contractors. Licensee and ORBCOMM are independent
contractors to one another, neither party has the authority to bind the other
in any way or to any third party, and nothing in this Contract shall be
construed as granting either party the right or authority to act as a
representative, agent, employee or joint venturer of the other.
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(k) Non-Disclosure. Each of the parties to this Contract
acknowledge the execution of the Mutual Non-Disclosure Agreement dated as of
October 15, 1996 and each agrees to observe the provisions thereof.
(l) English Language; Communication in English. The parties
recognize and agree that while this Contract may be translated into other
languages, the English language version of this Contract shall be the official
version of this Contract and shall prevail if any dispute in the interpretation
of this Contract between such languages arises between the parties. The
parties agree that all communications, notices or any written material to be
provided by ORBCOMM to Licensee or by Licensee to ORBCOMM under this Contract
shall be in the English language or accompanied by an accurate and complete
translation into English.
(m) Calendar. The Gregorian calendar shall be used in
calculating, invoicing and paying all amounts due under this Contract.
(n) Payments. All payments due and payable to ORBCOMM hereunder
shall be paid in U.S. Dollars in immediately available funds to the bank
account specified by ORBCOMM in writing. In the event there is a material
adverse change in the financial conditions or results of operations of
Licensee, ORBCOMM shall have the right to require Licensee to make a cash
deposit or to provide ORBCOMM with an irrevocable letter of credit in favor of
ORBCOMM issued by a bank reasonable acceptable to ORBCOMM, provided that the
amount of such case deposit or irrevocable letter of credit shall bear a
reasonable relationship to amounts generally due and owing under this Contract.
(o) Equitable Relief. Each of the parties acknowledges that the
goods and services provided pursuant to this Contract are unique and recognizes
and affirms that in the event of any breach of this Contract by it, money
damages may not be adequate and the other party may have no adequate remedy at
law. Accordingly, each of the parties agrees that the other party shall have
the right, in addition to any other rights and remedies existing in its favor,
to enforce its rights and the other party's obligations hereunder not only by
an action or actions for damages but also an action or actions for specific
performance, injunctive relief and/or other equitable relief.
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IN WITNESS WHEREOF, the parties have caused this Contract to
be executed as of the day and year first above written.
ORBCOMM INTERNATIONAL PARTNERS, L.P.
By:
-----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President, Market Development
EUROPEAN COMPANY FOR MOBILE
COMMUNICATOR SERVICES, B.V.,
ORBCOMM EUROPE
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
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