PRIVILEGED AND CONFIDENTIAL
ORBCOMM LLC DCN# USVAR03-009
ORBCOMM LLC
U.S. VALUE ADDED RESELLER AGREEMENT
This U.S. Value Added Reseller Agreement ("Agreement") is entered into this 1st
day of August 2003, by and between ORBCOMM LLC, a Delaware limited liability
company ("ORBCOMM"), with its offices located at 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxx 00000, and NIGHTHAWK SYSTEMS, INC., a Nevada corporation
("Reseller"), with its offices located at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, ORBCOMM operates a system that provides low-Earth orbit
satellite- based data communication services; and
WHEREAS, Reseller desires to market and sell access to and use of the
ORBCOMM System in the Territory solely with respect to the Application
(as defined herein below) in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1 - DEFINITIONS
(a) "Administrative Charges" shall mean the standard
charges and fees of ORBCOMM for performing administrative changes
with respect to particular Subscriber Communicators as set forth on the
Pricing Rate Schedule.
(b) "Affiliate" shall mean, with respect to any Person (i) any
other Person that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with
such Person. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
(c) "Agent" shall mean a Person (other than a Reseller or an Affiliate
of Reseller) that is authorized pursuant to Section 12 hereof to market
and sell access to and use of the ORBCOMM System on Reseller's behalf.
(d) "Application" shall mean the application used by Reseller
and described on Exhibit B and such other Applications as may be approved in
writing by ORBCOMM in its sole discretion and which shall be described by
written amendment to Exhibit B.
(e) "Billing Cycle" shall mean that period selected by ORBCOMM
for billing charges incurred by Reseller and due ORBCOMM; provided that ORBCOMM
may from time to time change such period upon notice to Reseller.
(f) "Billing Cycle Amount" shall mean, with respect to any Billing
Cycle, the sum of all charges incurred for such Billing Cycle (or, to the extent
not previously billed, any prior Billing Cycle), including Usage Charges (pro
rated for the number of days during such Billing Cycle each Subscriber
Communicator is provisioned), Provisioning Charges, Administrative Charges
and Miscellaneous Charges, for all Subscriber Communicators in each case,
calculated using the prices set forth in the Pricing Rate Schedule.
Preamble.
(g) "Effective Date" shall mean the date of this Agreement as set
forth in the
(h) "Event of Default" shall have the meaning set forth in Section 13.
(i) "Facilities" shall mean the satellites, ground segment equipment,
network control equipment, gateway Earth stations and other equipment comprising
the ORBCOMM System.
(j) "FCC" shall mean the United States Federal Communications
Commission or any successor agency thereto.
(k) "First-Line Support" shall mean customer support that is
provided using a facility that is staffed by trained personnel who are
equipped, among other things, to receive telephone, facsimile and e-mail
inquiries from Subscribers and to dispose of such inquiries promptly by
(i) resolving such inquiries and/or (ii) opening trouble tickets, which
may involve elevating such inquiries to higher levels of support as necessary,
monitoring the resolution process and informing the Subscriber of the
status of the relevant trouble ticket and of the ultimate resolution of
the trouble ticket. First-Line Support also includes the ability to monitor
and track the types of inquiries received and the status of such inquiries.
(l) "Governmental Authority" shall mean any federal,
state, local or other governmental agency or authority of the United
States or any other county.
(m) "Minimum Billing Cycle Amount" shall mean the amount set forth in Section
7.
(n) "Miscellaneous Charges" shall mean such miscellaneous charges of ORBCOMM
as may be in effect from time to time.
(o) "Mutual Non-Disclosure Agreement" shall mean the Mutual
Non-Disclosure
Agreement dated as of January 30, 2003, between Reseller and ORBCOMM.
(p) "ORBCOMM Graphic Identity Manual" shall mean the ORBCOMM Graphic
Identity Manual, available, upon written request to ORBCOMM, as such ORBCOMM
Graphic
Identity Manual may be modified from time to time by ORBCOMM in accordance with
Section
6(a).
(q) "ORBCOMM Services" shall mean services provided by ORBCOMM using the
ORBCOMM System from time to time.
(r) "ORBCOMM System" shall mean the low-Earth orbit
satellite-based data communication system operated by ORBCOMM or any successors
and assigns thereof.
(s) "Permits" shall mean any permits, franchise, license, license
exemption, consent, approval, authorization, registration, equipment type
approval, or import approval; the issuance of which is required by a
Governmental Authority with jurisdiction in any country in the Territory, to
facilitate the provision of ORBCOMM Services by Reseller in accordance with this
Agreement.
(t) "Person" shall mean an individual or a corporation,
partnership, association, trust or any other entity or organization.
(u) "Pricing Rate Schedule" shall mean the Pricing Rate Schedule, a
current copy of which is attached hereto as Exhibit C, which may be amended at
any time and from time to time by ORBCOMM on at least sixty (60) days prior
written notice to Reseller.
(v) "Provisioning Charge" shall mean the charge for the
activation of a particular Subscriber Communicator for use in connection with
the ORBCOMM System in the Territory, or outside the Territory if Roaming
Approved, as set forth on the Pricing Rate Schedule.
(w) "Roaming" shall mean the temporary and pre-approved by ORBCOMM use of a
Subscriber Communicator outside of the Territory.
(x) "Roaming Approved" shall mean an Application which has been
approved by
ORBCOMM to incorporate roaming.
(y) "Subscriber" shall mean a customer purchasing access to and use
of the
ORBCOMM System from Reseller or an Agent of Reseller.
(z) "Subscriber Communicator" shall mean the equipment used by
Reseller or its Agents or Subscribers to access the ORBCOMM System,
incorporating a modem which has been Type Approved by or on behalf of
ORBCOMM for use with the ORBCOMM System and to which a physical
serial number, device control number, radio identification codes,
and a Subscriber Communicator Address have been assigned.
(aa) "Subscriber Communicator Address" shall mean the
unique subscriber communicator address or addresses assigned to a
Subscriber Communicator for use within the ORBCOMM System.
(bb) "Subscriber Information" shall mean any information regarding a
Subscriber or Subscriber Communicator provided to ORBCOMM by Reseller,
Reseller's Agents or Reseller's employees during the term of this Agreement.
(cc) "Territory" shall mean the geographic or other market territory set
forth in Exhibit A hereto.
(dd) "Type Approved" shall mean the approval for use with the ORBCOMM
System granted by or on behalf of ORBCOMM to each model or type of modem based
on ORBCOMM's determination that such model or type of modem meets the
requirements set forth in the applicable specifications and
successfully meets the testing requirements specified in each applicable
subscriber communicator manufacturing agreement.
(ee) "Usage Charges" shall mean the per unit charges incurred by a
Particular Subscriber Communicator as set forth on the Pricing Rate Schedule.
SECTION 2 - PURCHASE OF SERVICE; NON-EXCLUSIVE LICENSE
(a) Purchase and Sale. ORBCOMM hereby agrees to sell to Reseller, and
Reseller hereby agrees to buy from ORBCOMM, ORBCOMM Services pursuant
to the terms of this Agreement in connection with the use of the ORBCOMM
System solely within the Territory and solely with respect to the Application.
(b) Non-Exclusive License to Resell. ORBCOMM hereby grants to Reseller
a non- exclusive license to resell access to and use of the ORBCOMM System
in accordance with the terms of this Agreement solely within the Territory
and solely with respect to the Application. Any purported resale by Reseller
to a prospective Subscriber outside of the Territory, other than with respect
to the Application or other than pursuant to the terms and conditions
of this Agreement, shall be null and void.
(c) Non-Exclusive License to Promote. ORBCOMM hereby grants to
Reseller a non-exclusive license to promote, solicit and market access to and
use of the ORBCOMM System solely within the Territory and solely with respect to
the Application.
(d) Sublicense. Subject to Section 12, Reseller may sublicense Agents
to promote, solicit and market access to and use of the ORBCOMM System on
Reseller's behalf, provided that a Subscriber shall, in any event, purchase and
receive services directly from Reseller and not from any Agent.
SECTION 3 - TERM OF AGREEMENT
Subject to the provisions of this Agreement, the term of this
Agreement shall commence on the Effective Date and continue for a
period of three (3) years (hereinafter the
"Initial Term"). This Agreement may be renewed for further terms of three (3)
years each (each, together with the Initial Term, the "Term") provided:
(i) Reseller first notifies ORBCOMM in writing of its desire to extend the
Agreement at least ninety (90) days prior to the expiration of any such Term;
and, (ii) ORBCOMM notifies the Reseller in writing of its desire to extend the
Agreement at least thirty (30) days prior to the expiration of any such Term.
SECTION 4 - RESPONSIBILITIES OF RESELLER
(a) Promotion. Reseller shall promote, solicit and market access to
and use of the ORBCOMM System within the Territory and with respect to the
Application. Reseller shall use all reasonable efforts to secure and
retain Subscribers for the Application in the Territory. Reseller shall
not promote, solicit or market access to and use of the ORBCOMM
System or otherwise take any action or participate in any activity that is
reasonably likely to result in the promotion, solicitation or marketing of
access to and use of the ORBCOMM System outside of the Territory. Reseller
shall not promote, solicit or market access to the ORBCOMM System in connection
with any application other than the Application.
(b) Sales Forecast. Reseller shall, no later than fifteen (15) days prior
to the commencement of each calendar month, provide ORBCOMM with a written sales
forecast, substantially in the form of Exhibit D (the "Monthly Sales Forecast")
setting forth in reasonable detail the information requested. Reseller shall
prepare the Monthly Sales Forecast on the basis of the Resellers' good faith
estimate of projected sales and on the basis of reasonable, good faith
assumptions.
(c) Provisioning. Reseller shall promptly notify ORBCOMM, in the manner
prescribed by ORBCOMM from time to time, of each Subscriber addition, Subscriber
Communicator Address change, Subscriber suspension or deletion from the ORBCOMM
System or other change in the service requested by Subscriber. Reseller shall be
responsible for all charges incurred from the date of any Subscriber addition
through the date Reseller properly notifies ORBCOMM of such Subscriber's
suspension, deletion or account transfer, Subscriber Communicator Address change
or other service change. In the event Reseller does not properly notify ORBCOMM,
in the manner prescribed by ORBCOMM, of a Subscriber suspension, deletion or
account transfer, Subscriber Communicator Address change or other service
change, Reseller shall be responsible for all charges incurred by that
Subscriber through and including the business day following the business day
Reseller properly notifies ORBCOMM of that Subscriber's suspension, deletion or
account transfer, Subscriber Communicator Address change or other service
change.
(d) Payments. Reseller shall be solely responsible for (i) xxxxxxxx
to and collections from its Subscribers and (ii) all amounts due to ORBCOMM
under Section 7 in accordance with invoices rendered by ORBCOMM with respect to
any Subscriber Communicator under Reseller's account regardless of whether
or not Reseller bills and/or collects from its Subscribers in the
manner prescribed by ORBCOMM from time to time.
(e) Representations and Warranties. Reseller shall not, and shall procure
that its Agents shall not, make any representation, warranty, indemnity or
similar claim concerning the operation, performance, reliability, redundancy,
fitness for particular purpose or similar feature of the ORBCOMM System or
ORBCOMM Services except as specifically set forth herein and as shall be
consistent with any and all written documentation provided by ORBCOMM to
Reseller, as such information may be revised from time to time by ORBCOMM.
(f) Standards. Reseller shall, and shall procure that its Agents shall,
employ the highest standards of business conduct in the performance of its
business and its obligations hereunder. Reseller shall, and shall procure that
its Agents shall, not do anything that could reasonably be expected to
discredit, dishonor, reflect adversely on or injure the reputation of ORBCOMM,
the ORBCOMM Services, or the ORBCOMM System.
(g) Support and Training. Reseller shall provide adequate support
and training to its Subscribers with respect to the access to and use of
the ORBCOMM System in connection with the Application.
(h) Demonstration Units. Reseller shall not be entitled to the use of any
Subscriber Communicators as demonstration units without the express, prior,
written permission of ORBCOMM. Reseller shall submit to ORBCOMM a written
request for each demonstration unit desired which shall detail among other
things: (i) the number of demonstration units required by the Reseller; (ii) the
period of time the demonstration units will be required; (iii) the application
to be demonstrated; and, (iv) the prospective customer. Demonstration units
provided to Reseller pursuant this Section 4(h) shall not be subject to any fees
except for Provisioning Charges. ORBCOMM may deactivate an unauthorized
demonstration unit at any time with or without notice to the Reseller and
without any liability to the Reseller and may deactivate an authorized
demonstration unit at any time with or without notice following the expiration
of the relevant demonstration period. Nothing in this Section 4(h) shall
prohibit Reseller from activating Subscriber Communicators for it own account,
subject to the Pricing Rate Schedule, to be used for demonstration purposes.
(i) Contracts. Reseller shall enter into a contract (which may
include a purchase order or other similar binding agreement) with each
of its Subscribers, which contract shall provide, in addition to such
other terms and conditions as Reseller may require (provided such terms and
conditions do not conflict with any of the terms required by this Section 4(i)),
for the following provisions (and any other provisions that ORBCOMM
may from time to time reasonably require Reseller to include):
(i) Subscriber shall not have and shall not acquire any proprietary
interest in the Subscriber Communicator Address or any other numbers or codes
associated with or allocated to a Subscriber Communicator.
(ii) NONE OF ORBCOMM OR ANY AFFILIATE OF ORBCOMM HAS MADE, OR
SHALL BE DEEMED TO HAVE MADE, ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER
WITH RESPECT TO THE ORBCOMM SYSTEM
OR THE ORBCOMM SERVICES. EACH OF ORBCOMM AND ITS AFFILIATES EXPRESSLY DISCLAIMS
WITH RESPECT TO SUBSCRIBER AND SUBSCRIBER EXPRESSLY WAIVES, RELEASES AND
RENOUNCES ALL WARRANTIES OF ORBCOMM AND ITS AFFILIATES ARISING BY LAW OR
OTHERWISE, WITH BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY WARRANTIES
AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF THE ORBCOMM SYSTEM, THE ORBCOMM
SERVICES OR ANY OTHER SERVICES PROVIDED BY ORBCOMM OR ITS AFFILIATES USING THE
ORBCOMM SYSTEM; AND (D) 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 AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM OR ITS AFFILIATES.
(iii) Subscriber acknowledges and understands that it shall bear all
responsibility, risk and cost associated with developing and maintaining its
business, and neither ORBCOMM nor its Affiliates shall be liable to Subscriber
for any costs or damages caused by any failure or impaired performance of the
ORBCOMM System or any component thereof.
(iv) Subscriber acknowledges that ORBCOMM shall supply the ORBCOMM Services
on a good faith efforts basis and that service failures and interruptions may
occur and are difficult to assess as to cause or resulting damages. The parties
agree that none of ORBCOMM nor its Affiliates shall be liable to Subscriber for
any losses or damages of any kind whatsoever arising out of any failure of
performance, error, omission, interruption, deletion, defect, delay in operation
or transmission, communication line failure, theft or destruction or
unauthorized access to, alteration of or use of records associated with the
ORBCOMM System or the ORBCOMM Services, whether for breach of contract, tortious
behavior, negligence or under any other cause of action.
(v) IN NO EVENT SHALL ORBCOMM OR ITS AFFILIATES HAVE ANY OBLIGATION,
LIABILITY, RIGHT, CLAIM OR REMEDY TO SUBSCRIBER UNDER THIS AGREEMENT
FOR LOSS OF USE, REVENUE OR PROFIT OR ANY OTHER INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES. In addition, in no event shall any liability of
ORBCOMM or its Affiliates exceed the amount of One Thousand U.S. Dollars
(US$1,000.00).
(vi) Use of the ORBCOMM System or the ORBCOMM Services is authorized by
Governmental Authorities only in certain countries, and is permissible
only when all
Permits have been received from the applicable Governmental Authorities.
In addition, use of a Subscriber Communicator is only permissible if it has been
specifically approved for use in that country or territory. For
information on those countries or territories in which use of the
ORBCOMM System is authorized and whether a Subscriber Communicator
has been approved for use in another country or territory, please contact your
NightHawk Systems, Inc. representative.
(j) First-Line Support. Reseller shall provide, at its own cost and
expense, First- Line Support to Subscribers. Reseller shall diligently
investigate, with the assistance of ORBCOMM, if such assistance is reasonably
requested by Reseller, any complaint from any Subscriber relating to the
provision of ORBCOMM Services to such Subscriber, and shall provide ORBCOMM with
a summary report describing those complaints deemed significant by Reseller,
which report shall describe the reasons for such complaint.
(k) Inventory. Reseller shall maintain a sufficient inventory of Subscriber
Communicators in good working order for purposes of replacing defective or
malfunctioning units, spares and new account sales. Reseller shall work directly
with the providers of the Subscriber Communicators to ensure that Subscriber
Communicators in need of repair shall be promptly exchanged or repaired.
(l) Tax. Reseller shall, and shall procure that its Agents shall, provide
ORBCOMM with a valid resale tax certificate, and accordingly, ORBCOMM is not
required to collect from Reseller or its Agents any sales, use, excise or other
similar tax on ORBCOMM Services provided by ORBCOMM to Reseller. All other
applicable transfer taxes and filing, recording, registration, stamp, VAT,
documentary and other similar taxes and fees that are payable in connection with
this Agreement will be borne by and be the obligation of Reseller and its
Agents.
(m) Standards. Reseller shall comply, and shall procure that its Agents
shall comply, with the standards established by ORBCOMM for use its
service marks, trademarks and trade names as contained in the ORBCOMM Graphic
Identity Manual, for all advertising, promotional and Subscriber training
materials to be used or distributed by Reseller or its Agents in connection with
ORBCOMM, the ORBCOMM System or any ORBCOMM Services.
SECTION 5 - RESPONSIBILITIES OF ORBCOMM
(a) Access. Subject to the provisions of this Agreement and the
operational policies established by ORBCOMM in its sole discretion from
time to time, ORBCOMM shall provide access to and use of the ORBCOMM
System to the Subscribers pursuant to the terms and conditions of this
Agreement.
(b) Invoices. Following the end of a Billing Cycle, ORBCOMM
shall provide an invoice to Reseller setting forth the Billing Cycle
Amount charged to Reseller for such Billing Cycle.
(c) Licenses and Permits. ORBCOMM shall use all commercially
reasonable efforts to maintain, or to cause its Affiliates to maintain, as the
case may be, all Permits required by the FCC or any other applicable
Governmental Authority for ORBCOMM to provide ORBCOMM Services in the
Territory.
(d) Changes. Upon receipt of the notice referred to in Section
4(c), ORBCOMM shall effect such Subscriber addition, Communicator Address
change, Subscriber deletion or suspension, or other change in service from
the ORBCOMM System within three business days or as soon thereafter as
practicable.
SECTION 6 - TRADE NAME, TRADEMARKS AND OTHER RIGHTS AND
INTERESTS
(a) Right to Use. Both parties acknowledge and agree that "ORBCOMM" and all
related marks, logos and designs are service marks, trademarks and a trade name
of ORBCOMM or its Affiliates (collectively, the "ORBCOMM Marks"). ORBCOMM hereby
grants to Reseller rights to use such ORBCOMM Marks in the Territory solely in
connection with the activities authorized under this Agreement and in
furtherance of the purposes of this Agreement, with the right to sublicense such
rights to its Agents; provided, that such rights to use the ORBCOMM Marks shall
terminate immediately and without further action upon the termination or
expiration of this Agreement. Reseller shall, and shall cause its Agents who are
sublicensed under this Agreement to, use the ORBCOMM Marks in all of their
printed and electronic media material that refer to ORBCOMM, the ORBCOMM System,
ORBCOMM Services or the Application, either directly or indirectly, in strict
conformity to all ORBCOMM's requirements for use of the ORBCOMM Marks, including
registry and trademark symbols set forth in the ORBCOMM Graphic Identity Manual,
and shall be subject to ORBCOMM's review from time to time at ORBCOMM's request.
ORBCOMM shall have the right to reject any use of the ORBCOMM Marks as
non-compliant with the ORBCOMM Graphic Identity Manual in its sole discretion.
ORBCOMM shall have the right to modify the ORBCOMM Graphic Identity Manual from
time to time after giving Reseller not less than five business days prior
written notice of such modification; provided, that for a period of six months
from the receipt of such notice, Reseller shall be entitled to continue to use
all existing marketing materials that previously complied with the ORBCOMM
Graphic Identity Manual. Reseller shall be responsible for ensuring that its
Agents to whom it sublicenses the ORBCOMM Marks comply in all respects with the
terms of use of the ORBCOMM Marks as set forth herein, and Reseller hereby
agrees to indemnify, defend and hold harmless ORBCOMM from and against any loss,
expense or settlement arising from its Agents' failure to abide by such terms.
(b) Cooperation. Reseller shall, and shall cause its Agents to, cooperate
with ORBCOMM in providing support and any information that may be required in
defense of the ORBCOMM Marks as a result of the use thereof by Reseller or its
Agent(s) pursuant to this Agreement.
(c) Revocation. ORBCOMM reserves the right to revoke the license to use the
ORBCOMM Marks, if, in its sole discretion, it determines that Reseller or its
Agents have improperly used any such material.
(d) Prohibited Acts. Reseller agrees, and shall cause its Agents, not to
(i) engage in any activities or commit any acts, directly or indirectly, that
may contest, dispute or otherwise impair ORBCOMM's right, title and interest in
the ORBCOMM Marks, (ii) sublicense use of the ORBCOMM Marks to any other Person,
without the express written consent of ORBCOMM; (iii) attempt to register any of
the ORBCOMM Marks or any other trademarks confusingly similar thereto; or (iv)
use any trademarks confusingly similar to the ORBCOMM Marks. This provision
shall survive termination of this Agreement.
(e) Approvals. Reseller shall be required to obtain for itself and its
Agents to whom it has granted sublicenses under the ORBCOMM Marks, the prior
written consent of ORBCOMM for (i) any advertising, packaging, promotional,
instructional and billing materials that contain references to ORBCOMM, or (ii)
any use of the word "ORBCOMM" for a logo, trademark, service xxxx or trade name;
provided that if such materials or use, as the case may be, comply with the
provisions of ORBCOMM's Graphic Identity Manual with respect thereto, the prior
written consent of ORBCOMM shall not be required. Further, unless rejected
within ten (10) days of receipt thereof by ORBCOMM, such materials or use shall
be deemed approved by ORBCOMM.
SECTION 7 - FEES AND PAYMENT TERMS
(a) Fees. Reseller shall pay to ORBCOMM (or its designee) the greater of
the Billing Cycle Amount or the Minimum Billing Cycle Amount for any Billing
Cycle as provided in this Section 7. For the first six (6) Billing Cycles, the
Minimum Billing Cycle Amount shall be $0.00. For the following six (6) Billing
Cycles, the Minimum Billing Cycle Amount shall be $1,250.00. For each Billing
Cycle thereafter, the Minimum Billing Cycle Amount shall be $2,500.00.
(b) Application of Amounts Received. Amounts received by ORBCOMM
shall be applied by ORBCOMM to amounts due and owing by Reseller to ORBCOMM in
the following order of priority: (i) to all expenses (including
reasonable attorney's fees) incurred by ORBCOMM in the collection of
amounts due ORBCOMM; (ii) to all late fees due and owing pursuant to
paragraph (d) below; (iii) to all past due Billing Cycle Amounts and; (iv) to
the Billing Cycle Amount for the Billing Cycle most recently ending.
(c) Currency. All amounts to be paid by Reseller pursuant to this
Section 7 shall be paid in full in U.S. Dollars within thirty (30) days of the
date of the invoice.
(d) Method of Payment. All amounts to be paid by Reseller pursuant to this
Section 7 shall be paid by check or wire transfer of immediately available funds
in accordance with ORBCOMM's written instructions as set forth in the invoice.
(e) Late Fees. All amounts to be paid by Reseller pursuant to this
Section 7 must be received by the due date to be considered paid on time.
ORBCOMM reserves the right to apply a late payment fee on any balances that
remain unpaid thirty (30) days following the date of the invoice in the
amount equal to the lesser of: (i) one and one-half percent (1 %) per month
of such amount beginning on the date the payment was due, and (ii) the maximum
amount allowed under applicable law.
(f) Taxes. The charges or fees set forth in the Pricing Rate Schedule
exclude all present and future taxes, duties, required contributions or fees of
any nature, including, but not limited to federal, state, national, provincial,
local or other sales or use taxes, fees, excises, property or gross receipts
taxes or fees, telecommunication taxes, license or access fees, or other taxes
or duties that may now or hereafter be levied on the services provided or on the
charges or fees invoiced to Reseller under this Agreement (collectively,
"Taxes"). Any such Taxes, however denominated, that may now or hereafter be
levied on the services provided or payments made under this Agreement, excluding
taxes based on ORBCOMM's net income, shall be paid by Reseller and the relevant
amount payable by Reseller shall be increased by such amount as is necessary to
make the actual amount received by ORBCOMM after such withholding equal to the
amount that would have been received had no withholding been required and
Reseller shall make such withholding and pay the amount withheld to the relevant
taxation authority. Reseller is responsible for (i) the payment of Taxes,
whether they are concurrently invoiced by ORBCOMM with the original invoiced
amount or subsequently invoiced by ORBCOMM, (ii) determining the applicability
to Reseller of the tax laws of the jurisdiction where delivery occurs, and (iii)
the collection and payment of all required Taxes from its Subscribers.
(g) Credits and Offsets. In the event a credit is owed to Reseller by
ORBCOMM, ORBCOMM may provide such to Reseller by offsetting amounts owed
to it by Reseller in an amount equal to such credit.
SECTION 8 - REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Reseller's Representations and Warranties. Reseller represents and
warrants to ORBCOMM that (i) Reseller is duly organized or formed, validly
existing and in good standing under the laws of the state of its organization or
formation, as the case may be, and in each jurisdiction in which the nature of
its business requires it to be so, (ii) the execution, delivery and performance
of this Agreement by Reseller have been duly authorized by all necessary action
(corporate or otherwise) on the part of Reseller, (iii) this Agreement has been
duly executed and delivered by Reseller and constitutes a legally valid and
binding obligation of Reseller, enforceable against Reseller in accordance with
its terms, (iv) Reseller has all Permits necessary for Reseller to enter into
and perform its obligations under this Agreement, and (v) Reseller shall not
violate any copyright, trade secret, trademark, patent, invention, proprietary
information, privacy, non- disclosure or any other statutory or common law
rights of any third party in the performance of its obligations under this
Agreement.
(b) ORBCOMM's Representations and Warranties. ORBCOMM represents
and warrants to Reseller that (i) ORBCOMM is duly organized or formed, validly
existing and in good standing under the laws of the state of its organization or
formation, as the case may be, and in each jurisdiction in which the nature of
its business requires it to be so, (ii) the execution, delivery and performance
of this Agreement by ORBCOMM have been duly authorized by all necessary action
(corporate or otherwise) on the part of ORBCOMM, (iii) this Agreement
has been duly executed and delivered by ORBCOMM and constitutes a legally valid
and binding obligation of ORBCOMM, enforceable against ORBCOMM in
accordance with its terms, and (iv) ORBCOMM or its Affiliates have
all Permits necessary for ORBCOMM to enter into this Agreement and
perform its obligations in accordance with the terms hereof, and (v) ORBCOMM
shall not violate any copyright, trade secret, trademark, patent, invention,
proprietary information, privacy, non-disclosure or any other statutory or
common law rights of any third party in the performance of its obligations
under this Agreement.
(c) Indemnification. Reseller and ORBCOMM agree to indemnify and hold
harmless the other and its Affiliates, and their respective stockholders,
members, officers, directors, employees, agents and representatives against all
claims, demands or liabilities (including reasonable attorneys' fees) of third
parties arising from or in connection with their respective breach of any
representations, warranties, covenants or agreements contained herein.
SECTION 9 - U.S. GOVERNMENT SUBSCRIBERS
In the case of U.S. government subscribers, Reseller acknowledges and
agrees that the ORBCOMM Services shall be rendered on a commercial basis
consistent with Part 12 of the Federal Acquisition Regulation ("FAR"), as
amended, and that Reseller shall, and shall procure that its Agents shall,
offer the ORBCOMM Services as "Commercial Items" as set forth in FAR Part 12.
As set forth in FAR Part 12, ORBCOMM accepts only the following provisions
with respect to any order issued under any U.S. Government contract:
FAR 52.222-26 Equal Opportunity
FAR 52.222-35 Affirmative Action for Special Disabled and Vietnam
Era Veterans
FAR 52.222-36 Affirmative Action for Handicapped Workers
SECTION 10 - TESTING
(a) Fitness for Use. Notwithstanding anything else in this Agreement,
Reseller shall not promote, solicit and/or market access to and use of the
ORBCOMM System with respect to the Application until such Application has been
tested by and at the sole expense of the Reseller and such testing demonstrates
the Application's fitness for commercial use to the reasonable satisfaction of
ORBCOMM. The test or tests to be utilized pursuant to this section 10(a) shall
be jointly developed by Reseller and ORBCOMM and shall be satisfactory to
ORBCOMM in its reasonable sole discretion to determine the fitness for
commercial use of the Application with the ORBCOMM System.
(b) Subsequent Failure. In the event that an Application, which has been
tested and approved pursuant to Section 10(a), subsequently fails to meet the
reasonable standards for fitness for commercial use as determined by ORBCOMM
from time to time, ORBCOMM may suspend ORBCOMM Services to the Reseller,
Subscribers, other Persons or Subscriber Communicators that utilize such
Application until such time as Reseller can demonstrate to ORBCOMM, at
Reseller's sole expense, that such Application is once again fit for commercial
use to the reasonable satisfaction of ORBCOMM.
(c) No Liability. In the event ORBCOMM suspends ORBCOMM Services to
the Reseller, Subscribers, other Persons or Subscriber Communicators that
utilize such Application pursuant to Section 10(a) or 10(b) of this Agreement,
ORBCOMM shall not incur any liability to the Reseller, Reseller's Agents or
Subscribers. Reseller shall indemnify and hold harmless ORBCOMM from
any such liability for such suspension of service to Reseller, Subscribers,
other Persons or Subscriber Communicators that utilize such Application.
SECTION 11 - RESTRICTIONS ON ACCESS AND USE
(a) Abuse and Fraudulent Use. Access to the ORBCOMM System is furnished
subject to the condition that there be no abuse or fraudulent use of the ORBCOMM
System by the Reseller, its Agents, the Subscribers or any other Person.
Reseller shall not abuse or fraudulently use the ORBCOMM System and shall take
any and all steps necessary to control and prevent abuse or fraudulent use of
the ORBCOMM System by its Agents, Subscribers and any other Person. Abuse or
fraudulent use of the ORBCOMM System includes, but is not limited to:
(i) Providing or attempting to provide, or assisting or permitting
another Person to (A) access, alter or interfere with the communications
and/or information of a Subscriber by rearranging, tampering or making an
unauthorized connection with any Facilities of ORBCOMM or (B) use of any scheme,
false representation or false credit device, with the intent to avoid payment,
in whole or in part, for ORBCOMM Services; (ii) Using the ORBCOMM System in such
a manner so as to interfere unreasonably with the use of the ORBCOMM System by
Subscribers; or (iii) Using the ORBCOMM System to convey information that is
deemed, in ORBCOMM's sole judgment, to be obscene, salacious or prurient,
or to convey information of an unlawful nature or in an unlawful
manner.
(b) Knowledge. Reseller shall promptly advise ORBCOMM in the event Reseller
has knowledge or reason to believe that any Agent, Subscriber or any other
Person is abusing or fraudulently using the ORBCOMM System in violation of
Section 11(a) hereof. In the event ORBCOMM is advised or reasonably believes
that Reseller, any Agent, Subscriber or other Person, is abusing or fraudulently
using the ORBCOMM System as specified in Section 11(a), ORBCOMM shall have the
right to immediately terminate such Reseller's, Agent's, Subscriber's
or other Person's access to the ORBCOMM System for any or all of such
Reseller's, Agent's, Subscriber's or other Person's Subscriber Communicators,
and ORBCOMM shall have no liability for such termination of access to the
ORBCOMM System.
(c) Electromagnetic Interference. The parties understand and acknowledge
that from time to time one or more resellers, subscribers, other Persons or
subscriber communicators may cause electromagnetic interference, either
intentionally or unintentionally, with (i) the operation of the ORBCOMM System
in such a way as to impair the quality of service provided by ORBCOMM to its
other resellers and subscribers or (ii) the operation of another system or
application approved by the FCC or other Governmental Authority. Accordingly,
the parties agree that: (A) ORBCOMM may upon discovery of, or upon reasonable
suspicion of, any such interference or abuse by a reseller, subscriber, other
Person or subscriber communicator discontinue ORBCOMM Services to the reseller,
subscriber, other Person or subscriber communicator that is causing the
interference or abuses; and, (B) Reseller shall promptly advise ORBCOMM in the
event Reseller has knowledge or reason to believe that any Agent, Subscriber,
other person or any subscriber communicator is interfering with the operation of
the ORBCOMM System or any other system or application approved by the FCC or any
other Governmental Authority.
(d) Cure. In the event that a Subscriber Communicator interferes
with or impairs the performance the ORBCOMM System or any of any other
application approved by the FCC or any other Governmental Authority,
whether intentional or unintentional, Reseller shall immediately take
any and all actions necessary and advisable to cure such interference
(including, if necessary repair, replacement or deactivation of the applicable
Subscriber Communicator).
(e) Compliance. Reseller shall, and shall procure that its Agents shall,
comply with all applicable laws, rules and regulations of any applicable
Governmental Authority in the performance of its obligations hereunder and in
the use of the ORBCOMM System or any Subscriber Communicator. Reseller shall
take any and all necessary action to prevent violations of all such applicable
laws, rules and regulations by its Subscribers, Agents and employees in
connection with the use of the ORBCOMM System or any Subscriber Communicators,
whether intentional or unintentional. In the event such a violation occurs,
Reseller shall immediately take any and all actions necessary or advisable upon
consultation with ORBCOMM to cure such violation promptly. Reseller shall
promptly advise ORBCOMM in the event Reseller has knowledge or reason to believe
that any Agent or Subscriber is in non-compliance with any applicable law, rule
or regulation. ORBCOMM may upon discovery, or reasonable suspicion of, any such
violation discontinue ORBCOMM Services to such Agent or Subscriber.
(f) Unusually High Usage. Should Reseller detect or be advised by ORBCOMM
of an instance of unusually high Subscriber Communicator usage or transmissions
that could be a threat to capacity or might indicate a malfunctioning Subscriber
Communicator, Reseller shall promptly investigate any such instance of unusually
high Subscriber Communicator usage or transmissions and shall promptly report
such findings to ORBCOMM for evaluation; provided, that ORBCOMM shall have the
right to deactivate any such Subscriber Communicator.
ORBCOMM shall make reasonable efforts to notify Reseller prior to
deactivating any such
Subscriber Communicators.
(g) Type Approved Modems. (i) Reseller shall be responsible for ensuring
that only Type Approved modems are incorporated into Subscriber Communicators
sold or otherwise distributed by it and that all Subscriber Communicators used
by its Subscribers in connection with the ORBCOMM System, and each Subscriber's
use thereof, at all times meets the regulatory requirements of the FCC and any
other applicable Governmental Authorities. Upon the written request of Reseller,
ORBCOMM shall provide Reseller from time to time with a list of Type Approved
modems.
(ii) In the event any Subscriber Communicator manufacturer notifies
Reseller that a Subscriber Communicator does not meet the regulatory
requirements of the FCC or any other applicable Governmental Authority, Reseller
shall promptly notify ORBCOMM of such non-conforming Subscriber Communicators.
In the event Reseller so notifies ORBCOMM, or ORBCOMM otherwise becomes aware
that any Subscriber Communicator does not meet the regulatory requirements of
the FCC or any other applicable Governmental Authority, ORBCOMM shall have the
right to terminate immediately without notice such Subscriber Communicators'
access to and use of the ORBCOMM System.
(iii) During the term of this Agreement, Reseller shall maintain in full
force and effect all Permits that are required in connection with the
performance of its obligations hereunder, provided, however, that Reseller, its
Agents or Affiliates, shall not apply for any Permit or contact any Governmental
Authority regarding any Permit, without first obtaining written authorization to
do so from ORBCOMM. Upon the written request from ORBCOMM, Reseller shall
provide ORBCOMM reasonable evidence of the validity or effectiveness of any
Permit held by or on behalf of Reseller in connection with this Agreement.
(h) Roaming. Reseller shall not submit for activation any Subscriber
Communicator for use outside of the Territory except in connection with
Applications that are Roaming Approved.
(i) Restrictions on Access. Reseller shall notify its Agents and
Subscribers regarding the foregoing restrictions on access as set forth in
Sections 11(a) - (h).
SECTION 12 - APPROVAL OF AGENTS
(a) Conditions. Reseller may appoint a Person as an Agent
without the prior written approval of ORBCOMM; provided, that such
appointment is in writing and states that such Person agrees to comply with
the following:
(i) such Person shall agree in writing that it shall be bound
by, and shall perform its obligations in accordance with, the terms and
conditions of this Agreement and shall conduct its business in such a
manner as to not cause a violation of any of the provisions of this
Agreement or any of the policies which ORBCOMM may establish from time to time
concerning Agents or the marketing of ORBCOMM Services;
(ii) such Person shall make to and agree with ORBCOMM in writing
representations, warranties and covenants of a substantially similar nature as
the representations, warranties and covenants of Reseller set forth in Section
8(a); and
(iii) such Person shall agree in writing to indemnify and hold harmless
ORBCOMM and its Affiliates and their respective stockholders, members, officers,
directors, employees, agents and representatives against all claims, demands or
liabilities (including reasonable attorney's fees and out-of-pocket expenses) of
third parties arising from or in connection with (A) such Person's breach of its
representations, warranties, covenants or agreements made to ORBCOMM or Reseller
or (B) such Person's actions or omissions as an Agent of Reseller;
and provided further, that such agreements in writing shall contain enforceable
provisions making ORBCOMM a third party beneficiary thereof, to the
extent ORBCOMM is not a direct party thereto.
(b) Termination. Reseller shall terminate any Agent, promptly upon
the request of ORBCOMM, if such Agent fails to observe or perform any of its
covenants and agreements as an Agent, including those covenants and agreements
set forth in Section 12(a) above.
SECTION 13 - DEFAULT
The following events shall constitute events of default ("Events of Default")
under this Agreement: (a) Reseller fails to pay any amount to ORBCOMM when due
as set forth in Section 7; (b) Reseller, any of its Agents or any of its
Subscribers shall fail to observe, perform or comply with any of the covenants
or agreements contained in Section 2, Section 10(a) or (b), or Section 11; (c)
Reseller or any of its Agents shall fail to observe, perform or comply with any
of its covenants or agreements contained in this Agreement (other than as
specified in Section 13(a) or 13(b) above) and such failure remains uncured for
a period of thirty (30) days after receipt by the breaching party of written
notice of such failure; or (d) Any representation, covenant or warranty made by
or on behalf of the Reseller (or any Agent) contained in this Agreement or in
any other agreement in connection therewith shall prove to be incorrect, false
or misleading on the date as of which they were made or deemed to have been
made.
SECTION 14 - TERMINATION
(a) Right to Terminate. Upon the occurrence of an Event of Default, ORBCOMM
shall have the right to terminate this Agreement by giving notice of termination
to the Reseller. The parties agree that the definitions set forth in Section 1,
Reseller's obligation to pay any and all amounts due and owing by Reseller under
this Agreement prior to the expiration or termination of this Agreement and the
covenants, agreements and obligations of the parties in Sections 6(d), 7, 8,
11(g)(iii), 14, 16, 17 and 18 hereof shall survive the expiration or termination
of this Agreement.
(b) Right to Contact Subscriber. Upon termination of this Agreement by
ORBCOMM as the result of an Event of Default, ORBCOMM shall be entitled to
contact each Subscriber, if any, for the purpose of advising such Subscriber as
to how such Subscriber may maintain access to the ORBCOMM System after
termination of this Agreement. In such event or upon expiration of this
Agreement, Reseller (i) shall cooperate with ORBCOMM to enable all Subscribers
to continue to have access to the ORBCOMM System with minimal disruption,
including, but not limited to, arranging for another reseller or ORBCOMM to
provide ORBCOMM Services to such Subscriber or (ii) shall promptly provide
ORBCOMM with sufficient information on Reseller's Subscribers so that ORBCOMM
can arrange for the provision of ORBCOMM Services to such Subscribers, provided
that ORBCOMM shall be under no obligation (A) to ensure that any such Subscriber
is able to continue to have access to the ORBCOMM System or (B) to arrange for
any transfer of equipment owned or leased by Reseller.
(c) No Liability. In the event ORBCOMM terminates this Agreement pursuant
to an Event of Default, ORBCOMM may terminate or temporarily discontinue
furnishing service to Reseller without incurring any liability to the Reseller
or its Agents or Subscribers. Reseller shall indemnify and hold harmless ORBCOMM
from any such liability for such termination or temporary discontinuation of
service to Reseller's Subscribers.
(d) Without Prejudice. Termination of this Agreement by ORBCOMM shall be
without prejudice to any other rights or remedies ORBCOMM shall have at law or
equity.
(e) Responsibility for Obligation to Subscribers. After termination of this
Agreement, Reseller shall remain solely responsible for all obligations to its
Subscribers and shall remain liable for payment of all amounts due pursuant to
Section 7 and all accrued but unbilled fees due pursuant to Section 7 through
and including the date of termination.
(f) Cancellation of Order. Upon the giving or receiving of any notice of
termination, ORBCOMM shall be entitled to, without liability, cancel any
previously accepted orders to provide ORBCOMM services to new Subscribers that
have not yet been activated.
(g) Return of Equipment and Documents. Upon termination, Reseller shall
promptly return to ORBCOMM (i) any ORBCOMM equipment, other than equipment that
has been paid for in full by Reseller, and (ii) originals and any copies of the
ORBCOMM Graphic Identity Manual, any marketing collateral or any technical or
other manuals or documents, whether in written, electronic, magnetic, or other
form or media, or provide ORBCOMM with written certification of their
destruction.
SECTION 15 - USE OF SUBSCRIBER INFORMATION, NON-DISCLOSURE AND
NON-SOLICITATION.
(a) Use of Subscriber Information, Non-Disclosure. Except as provided
for herein, from the Effective Date of this Agreement until three years
following the date on which Reseller ceases to be a reseller of ORBCOMM
Services, ORBCOMM shall neither (i) make use of any Subscriber Information
provided by the Reseller pursuant to the terms of this Agreement or
otherwise for any purpose competitive to the business of the Reseller, nor (ii)
disclose any such Subscriber Information to any third party; provided,
however, that ORBCOMM shall not be prohibited from doing so should such
Subscriber Information: (A) be publicly available prior to the Effective
Date of this Agreement; (B) become publicly available after the Effective
Date of this Agreement through no wrongful act of ORBCOMM; (C) be
furnished to others by the Reseller without similar restrictions on their
right to use or disclose; (D) be rightfully known by ORBCOMM without any
proprietary restrictions at the time of receipt of such information from the
Reseller or becomes rightfully known to ORBCOMM without proprietary restrictions
from a source other than the Reseller; (E) be independently developed by ORBCOMM
by persons who did not have access, directly or indirectly, to the Subscriber
Information; or (F) be obligated to be produced under order of a court of
competent jurisdiction or a valid administrative, arbitral or congressional
subpoena, provided that ORBCOMM promptly notifies the Reseller of such event so
that the Reseller may seek an appropriate protective order.
(b) Non-Solicitation. Except as provided for herein, from the
Effective Date of this Agreement until three years following the date on
which Reseller ceases to be a reseller of ORBCOMM Services, ORBCOMM shall
not solicit with a view to selling ORBCOMM Services to any Subscriber of the
Reseller as a result of ORBCOMM being given the Subscriber Information
by Reseller pursuant to the terms of this Agreement or otherwise.
SECTION 16 - DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
(a) Disclaimer of Warranties.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF ORBCOMM OR ANY OF ITS
AFFILIATES HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR
WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM SYSTEM OR THE ORBCOMM
SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ORBCOMM AND ITS
AFFILIATES EXPRESSLY DISCLAIM WITH RESPECT TO RESELLER AND ITS AGENTS AND
SUBSCRIBERS, AND RESELLER (ON ITS OWN BEHALF AND ON BEHALF OF ITS AGENTS AND
SUBSCRIBERS) HEREBY EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES OF
ORBCOMM AND ITS AFFILIATES ARISING AT LAW, EQUITY OR OTHERWISE, WITH RESPECT TO,
INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY WARRANTIES AS TO
THE ACCURACY, AVAILABILITY OR CONTENT OF THE ORBCOMM SYSTEM OR THE ORBCOMM
SERVICES; AND (D) ANY WARRANTY UNDER ANY THEORY OF LAW OR EQUITY, INCLUDING ANY
TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY.
NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO,
STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT CONTAINED IN
THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM.
(b) Limitation of Liability.
(i) UNDER NO CIRCUMSTANCES SHALL ORBCOMM BE LIABLE TO RESELLER FOR
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING
LOST PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT OR
SERVICES, OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR
NON- PERFORMANCE BY ORBCOMM OF ANY ASPECT OF THIS AGREEMENT WHETHER IN CONTRACT
OR TORT OR OTHERWISE, AND WHETHER THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
(ii) Reseller acknowledges that interruptions of ORBCOMM Services may occur
from time to time as the result of, among other things, (A) placing Subscriber
Communicators in locations that preclude a Subscriber Communicator's visibility
to the ORBCOMM System satellites (e.g., in a tunnel), and (B) topographical and
other conditions. Reseller acknowledges that service interruptions are difficult
to assess as to cause or resulting damages. The parties agree that ORBCOMM and
its Affiliates shall not be liable to Reseller, its Agents or Subscribers for
any losses or damages arising out of any failure or impaired performance of,
error, omission, interruption, deletion, defect, delay in operation or
transmission, communication line failure, theft or destruction or unauthorized
access to, alteration of, or use of records, associated with the ORBCOMM System
or any component thereof, whether for breach of contract, tortious behavior,
negligence or under any other cause of action.
(iii) None of ORBCOMM or any of its Affiliates shall be liable
for any act or omission of Reseller, any of its Agents or any other
person or entity furnishing equipment, products or services to Reseller
or its Agents or Subscribers, nor shall ORBCOMM or its Affiliates be
liable for any damages or losses of any kind whatsoever due to any act or
omission of Reseller or its Agents or Subscribers or the failure of such
equipment, products or services.
(iv) The aggregate liability of ORBCOMM and its Affiliates under
this Agreement shall be limited to direct damages proven in an amount not to
exceed Ten Thousand U.S. Dollars
(US$10,000).
(v) Reseller has accepted the limitations of liability set forth
herein as part of the exchange of consideration under this Agreement and
expressly acknowledges that the prices for the ORBCOMM Services would be
higher if ORBCOMM were requested to bear additional liability for
damages.
SECTION 17 - DISPUTE RESOLUTION
(a) Arbitration. Except as provided for in Section 18(k), any
controversy or claim arising out of or relating to this Agreement, or any
breach hereof, shall be settled by final and binding arbitration
administered by the American Arbitration Association under its Commercial
Dispute Resolution Procedures (the "Rules"). Such arbitration shall take
place in Washington, D.C. before a panel of three neutral arbitrators selected
pursuant to such Rules. The arbitrators' award shall include an allocation of
arbitration fees, expenses and compensation, and may include an award to the
prevailing party of its attorney's fees, costs and expenses in connection with
the arbitration. A judgment on the award rendered by the arbitrators may be
entered in and enforced by any court having jurisdiction thereof, each party
hereby consenting to the jurisdiction of such court over it and waiving, to the
fullest extent permitted by law, any defense or objection relating to in
personam jurisdiction, venue or convenience of the forum. All matters arising
in any action to enforce an arbitral award shall be determined in accordance
with the law and practice of the forum court.
(b) Exclusivity. The rights of the parties under this Section 17 and
Section 18(k) shall be the exclusive dispute resolution mechanisms with
respect to any claim or controversy under this Agreement.
SECTION 18 - MISCELLANEOUS
(a) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given upon receipt if delivered personally or by
facsimile (answer back received), one business day after being sent by
express mail or courier, or three business days after being sent by registered
or certified mail, return receipt requested, postage prepaid, to the parties at
the following addresses (or such other address for a party as shall be specified
by like notice, provided that such notice shall be effective only upon receipt
thereof):
ORBCOMM:
ORBCOMM LLC
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: x0 (000) 000-0000
Facsimile: x0 (000) 000-0000
Attention: General Counsel and
Xxx Xxxxxx
with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: x0 (000) 000-0000
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxxxx X. San Xxxxxx
RESELLER:
NightHawk Systems, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: x0 (000) 000-0000
Facsimile: x0 (000) 000-0000
Attention: Xxxxx Xxxxxx
(b) Binding Effect; Assignment. This Agreement shall be binding upon the
parties and their permitted successors and assigns. Neither this Agreement nor
any interests or obligations of either party shall be assigned or transferred
(by operation of law or otherwise) to any Person without the prior written
consent of the other party, which consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, either party may assign this Agreement
without the other party's consent in the event the party becomes a party to one
or more transactions in the form of a merger, consolidation, reorganization,
stock sale or exchange, sale of all or substantially all of the party's assets
or some similar or related transaction, with the result being that said party is
the surviving entity, or if not the surviving entity, the surviving entity
continues to conduct the business conducted by such party prior to the
consummation of the transaction, including the assumption of the rights and
obligations under this Agreement.
(c) Entire Agreement; Amendment. This Agreement and all attachments (which
are hereby made part of this Agreement) contain the entire understanding between
Reseller and ORBCOMM and supersede all prior written and oral understandings
relating to the subject matter hereof (excluding the Mutual Non-Disclosure
Agreement). No representations, warranties, indemnities, agreements or
understandings not contained herein shall be valid or effective unless agreed to
in writing and signed by both parties. Any modification or amendment of this
Agreement must be in writing and signed by both parties. Both parties agree and
acknowledge that this Agreement shall be governed solely by the terms and
conditions contained herein, and the terms and conditions of any purchase order,
task order or similar document (collectively, an "Order") shall be without any
force and effect and shall not amend, modify, add to, or delete the terms or
conditions of this Agreement.
(d) Governing Law. (i) The construction, interpretation and
performance of this Agreement, as well as the legal relations of the parties
arising hereunder, shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict or
choice of law provisions thereof. Neither party may bring any action for a
claim under this Agreement later than one year after the termination of this
Agreement; provided that claims under any provision of this Agreement that
survives termination of this Agreement may be brought within one year of
the later of the occurrence of the event giving rise to the claim and actual
knowledge thereof by the party asserting such claim.
(ii) For the purposes of this Agreement, Reseller by its
execution hereof (A) hereby irrevocably submits to the exclusive 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 on this
Agreement or the subject matter hereof 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 claim that is not subject
personally to the jurisdiction of the above- named courts, that its
property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that this
Agreement or the subject matter hereof may not be enforced in or by
such court. Reseller 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 18(a)
hereof is reasonably calculated to give actual notice. Reseller agrees that,
at ORBCOMM's request, it will appoint an agent for service of process within the
State of New York.
(e) Waiver. It is understood and agreed that no failure or delay by either
ORBCOMM or Reseller in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof, or the exercise of any other
right, power or privilege hereunder. No waiver of any terms or conditions of
this Agreement shall be deemed to be a waiver of any subsequent breach of any
term or condition. All waivers must be in writing and signed by both of the
parties hereto.
(f) Severability. If any part of this Agreement shall
be held invalid or unenforceable, such determination shall not affect
the validity or enforceability of any remaining portion, which shall remain in
force and effect as if this Agreement had been executed with the invalid or
unenforceable portion thereof eliminated.
(g) Headings. Headings in this Agreement are included
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
(h) Costs and Expenses. Except as otherwise specifically provided herein,
each party shall bear all costs and expenses incurred in the performance by it
of its obligations hereunder.
(i) Independent Parties. Each party is an independent
contractor. Except as provided in this Agreement, neither party shall
have the right, power or authority to act or to create any obligation,
express or implied, on behalf of the other party. All sales by Reseller shall
be in its own name and for its own account. No provision of this Agreement
shall be construed as vesting in Reseller any control over or interest in the
Facilities or operations of ORBCOMM or the ORBCOMM System. Reseller shall not
represent itself as a federal or state certified licensee of the ORBCOMM System.
(j) Tariffs. In the event that any ORBCOMM Services or the charges made
therefor are currently subject, or at any time become subject, to any tariff or
other form of rate regulation imposed by a Governmental Authority, then the
terms and conditions of this Agreement, including the prices set forth in the
Pricing Rate Schedule, shall be deemed amended to conform to any conflicting
terms and conditions in effect under such regulation or tariff. All
non-conflicting terms and conditions of this Agreement shall remain valid and in
full force and effect.
(k) Injunctive Relief. Each of the parties acknowledges that the ORBCOMM
System and ORBCOMM Services provided pursuant to this Agreement are unique and
recognizes and affirms that in the event of any breach of this Agreement by it,
money damages may not be adequate and the other party may have no adequate
remedy pursuant to the dispute resolution provisions specified in Section 17.
Accordingly, the dispute resolution provisions specified in Section 17 are not
exclusive of a party's right to injunctive relief to the extent permitted by
applicable law.
(l) 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 (other
than the failure to obtain Permits from a Governmental Authority), fire,
accident, war, riot, strikes, inclement weather or other cause of a similar
nature that is beyond the control of the parties. In the event of such
occurrence, this Agreement shall be amended by mutual agreement to reflect an
extension in the period of performance and/or time of delivery. Failure to
agree on an equitable extension shall be considered a claim or controversy and
resolved in accordance with Section 17.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
ORBCOMM LLC NIGHTHAWK SYSTEMS, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Co- Chief Executive Officer Title: Executive Vice President
EXHIBIT A
TERRITORY
The Territory shall mean the United States (including Puerto Rico and Guam).
EXHIBIT B
RESELLER APPLICATION DESCRIPTION
Reseller's Application is NIGHTHAWK REMOTE POWER CONTROL, which is used to
remotely turn connected appliances on or off by issuing simple, short message
bursts over the ORBCOMM System. The Application is designed to allow the end
user to access this control via a simple web-interface or via email-issued
commands.
PRICING NOTES
The pricing presented herein is subject to the following terms and conditions:
1. Terms not defined herein, or elsewhere in this Agreement, shall have the
meaning set forth in the ORBCOMM Messaging Services Description (A80MK0019 -
Revision - C, Issue Date: March 31, 2000) a copy of which may be obtained by
contacting ORBCOMM.
2. Each Subscriber Communicator provisioned on the ORBCOMM System shall be
assigned a "Price Plan Code" as set forth on the Pricing Rate Schedule. Reseller
shall be responsible for indicating into which Price Plan Code a Subscriber
Communicator is to be placed at the time of its provisioning.
3. Price Plan Codes correspond to the average number of Message Units
transmitted over a three month period by all Subscriber Communicators
provisioned with such Price Plan Code. The number of Message Units used by each
Subscriber Communicator shall be calculated as follows: (a) each Data Report,
Position Report, Message Enquiry, User Command, and Poll shall be equal to 1
Message Unit; (b) each Message of 7 to 33 bytes shall be equal to 2.41 Message
Units; (c) each Message of 34 to 70 bytes shall be equal to 3.33 Message Units;
(d) each Message of 71 to 107 bytes shall be equal to 4.24 Message Units; and
(e) for Messages greater than 107 bytes, the number of Message Units is equal to
the number of bytes transmitted divided by 25. For Messages and Globalgrams, the
sum of the lengths in bytes of the header, subject, and body parts are included
in the Message Unit calculation (minimum 33 bytes per message). Gateway Control
Center acknowledgements for Reports, Commands, and Messages are included and are
not counted as additional Message Units. For Subscriber Communicators which
transmit a variety of message types and lengths, the total usage is determined
by adding the total number of Message Units for each message type using the
ratios in paragraph 1 above in each Billing Cycle. Should the actual usage
exceed that of the Price Plan Code selected by the customer averaged over the
last three Billing Cycles, ORBCOMM will notify Reseller in writing of the actual
usage and the appropriate Price Plan Code which should apply. ORBCOMM will
change to the new Price Plan Code at the start of the next Billing Cycle, and
this will stay in effect for a minimum of the next three consecutive Billing
Cycles.
4. ORBCOMM shall calculate Usage Charges invoiced to Reseller on a Price
Plan Code by Price Plan Code basis. The first 999 Subscriber Communicators
within a Contract shall have a Usage Charge as set forth in the column with the
heading "First 999 Units." The column on the Pricing Rate Schedule that shall
determine the Usage Charge for each Price Plan Code shall be the column that
corresponds to the aggregate number of Subscriber Communicators provisioned on
the ORBCOMM system on the account of Reseller. These prices are valid for
applications which take reasonable care in making efficient use of ORBCOMM
network resources as described in Application Note #11, Application Traffic
Demand Considerations, Issue Date: September 30, 2000. ORBCOMM reserves the
right to apply surcharges to accounts which make excessive demands on network
resources as determined by ORBCOMM. Usage Charges shall be invoiced to Reseller
in advance at the beginning of each Billing Cycle based on the number of
Subscriber Communicators provisioned on the ORBCOMM System on the account of
Reseller at the beginning of each Billing Cycle. Credits and additional charges
for Subscriber Communicators provisioned or deprovisioned during each Billing
Cycle shall be made at the beginning of the following Billing Cycle.
5. All traffic is assumed to be sent at Normal Priority. SC-Terminated
Delivery Plan Code Zero ("0") is the standard for this pricing schedule.
ORBCOMM reserves the right to charge a premium for the use of SC-Terminated
Delivery Plan Codes other than Zero ("0").
6. Customer Owned and Maintained (COAM) frame relay fees are minimum fees
for integration and configuration of standard domestic connections. Additional
setup for international connections or other special requirements are charged at
$200 per hour for labor. Telephone company charges are additional.
7. Optional Subscriber Communicator features referred to include
provisioning for alternating terminating address, message forwarding, binary
Globalgrams, message blocking and any other non-standard features.
MONTHLY SALES FORECAST
(VALUE ADDED RESELLER COMPANY INFORMATION)
GENERAL INFORMATION
COMPANY NAME ADDRESS
ORBCOMM ACCOUNT #
INDUSTRY
APPLICATIONS
CONTACT INFORMATION
EXEC CONTACT SALES CONTACT
FINANCE CONTACT TECHNICAL CONTACT
EXEC TITLE SALES TITLE
FINANCE TITLE TECHNICAL TITLE
EMAIL EMAIL
EMAIL EMAIL
PHONE # PHONE #
PHONE # PHONE #
FAX # FAX #
FAX # FAX #
APPLICATION
DESCRIPTION
ADDRESSABLE MARKET SIZE
DEVICE TRACKED/MONITORED
DATA COMMUNICATED
CUSTOMERS
HARDWARE
POWER MANAGEMENT
ANTENNA
BACK OFFICE (WEB-ENABLED)
REPORTS/MO MESSAGES/MO
LENGTH COMMANDS/MO
TARGET VAR SERVICE PRICE TARGET VAR SC PRICE
LATENCY REQUIREMENT (MIN)
CRITICAL ISSUES
BUSINESS ISSUES
TECHNICAL ISSUES
NOTE: PLEASE COMPLETE THIS PAGE INITIALLY UPON SIGNATURE OF AGREEMENT AND
THEREAFTER AS THE INFORMATION CHANGES.
