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EXHIBIT 10.30
ORBCOMM USA, L.P.
RESELLER AGREEMENT
WITH
INTREX DATA COMMUNICATIONS GROUP
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<TABLE>
TABLE OF CONTENTS
<S> <C>
SECTION 1 - DEFINITIONS.................................................... 1
SECTION 2 - NON-EXCLUSIVE LICENSE.......................................... 3
SECTION 3 - TERM OF AGREEMENT.............................................. 3
SECTION 4 - INDEPENDENT PARTIES............................................ 3
SECTION 5 - RESPONSIBILITIES OF RESELLER................................... 4
SECTION 6 - RESPONSIBILITIES OF ORBCOMM USA................................ 8
SECTION 7 - TRADE NAME, TRADEMARKS, AND OTHER RIGHTS AND -
INTERESTS......................................................... 8
SECTION 8 - NON-COMPETITION................................................ 9
SECTION 9 - FEES AND PAYMENT TERMS......................................... 9
SECTION 10 - RESELLER REPRESENTATIONS, WARRANTIES AND COVENANTS............ 10
SECTION 11 - PROPRIETARY INFORMATION....................................... 10
SECTION 12 - RESTRICTIONS ON ACCESS........................................ 11
SECTION 13 - DEFAULT....................................................... 12
SECTION 14 - TERMINATION................................................... 12
SECTION 15 - DISCLAIMER OF WARRANTIES AND LIMITATION OF LL4,BILITY......... 13
SECTION 16 - DISPUTE RESOLUTION............................................ 15
SECTION 17 - TAXES......................................................... 15
SECTION 18 - MISCELLANEOUS................................................. 15
EXHIBIT A.................................................................. 19
EXHIBIT C.................................................................. 21
</TABLE>
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ORBCOMM USA, L.P.
RESELLER AGREEMENT
This Reseller Agreement ("Agreement") is entered into this 26th day of June,1996
by and between ORBCOMM USA, L.P., a Delaware limited partnership ("ORBCOMM
USA"), with its offices located at 21700 Atlantic Boulevard, Dulles, Virginia
20166, and INTREX DATA COMMUNICATIONS GROUP, a Texas corporation ("Reseller"),
with its offices located at 3410 Main Street, Dallas, Texas 75226.
WITNESSETH:
WHEREAS, ORBCOMM USA and its affiliates intend to operate a system to
provide lowEarth orbit satellite mobile message and data communications and
position determination service throughout the world; and
WHEREAS, Reseller desires to market and to sell access to and use of
such system 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) "Affiliate" shall mean, with respect to any Person (i) any Person
that directly, or indirectly through one or more intermediaries, controls such
Person or (ii) any Person (other than a subsidiary of such Person) which is
controlled by or is under common control with a controlling 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.
(b) "Agent" shall mean a Person who is an independent business separate
from Reseller that is authorized by contract with Reseller to solicit customers
and Subscribers on Reseller's behalf for ORBCOMM Products and Services, provided
that such Agent shall have been approved in advance in writing by ORBCOMM USA.
(c) "Facilities" shall mean the satellites, ground segment equipment,
network control equipment, gateway earth stations and other equipment comprising
the ORBCOMM System.
(d) "FCC" shall mean the United States Federal Communications
Commission or any successor agency thereto.
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(e) "Governmental Authority" shall have the meaning assigned thereto in
Section 5(c) hereof.
(f) "Multinational Account" shall mean an account pursuant to which a
customer who may be a reseller or other intermediary or an end-user, access the
ORBCOMM System, using some or all of its Subscriber Communicators, in more than
one territory; such Subscriber Communicators may be permanently located in one
specific territory, or they may be located in two or more territories and roam
between such territories.
(g) "'ORBCOMM Global, L.P." shall mean the Delaware limited partnership
formed pursuant to the Agreement of Limited Partnership of ORBCOMM Global, L.P.
(h) "ORBCOMM Products and Services" shall mean products and services
provided by ORBCOMM USA using the ORBCOMM System.
(i) "ORBCOMM Reseller Operations Manual" shall mean the document
attached hereto as Exhibit B, as such document may be amended or modified from
time to time by ORBCOMM USA.
(j) "ORBCOMM System" shall mean the low-Earth orbit two-way message and
data communications and position determination system developed, built, launched
and operated by ORBCOMM Global or any successors and assigns thereof.
(k) "ORBCOMM System Address" shall mean the unique subscriber
communicator address or addresses assigned to a "Subscriber Communicator."
(1) "Person" shall mean an individual, a corporation, a partnership, an
association, a trust or any other entity or organization.
(m) "Subagent" shall mean a Person who is an independent business
separate from an Agent that is authorized by contract with the Agent to solicit
customers and Subscribers on Reseller's behalf for ORBCOMM Products and
Services, provided that such Subagent shall have been approved in advance in
writing by ORBCOMM USA.
(n) "Subscriber" shall mean a customer purchasing access to the ORBCOMM
System from Reseller, provided that a customer purchasing access to the ORBCOMM
System from an Agent or Subagent shall be deemed a Subscriber of Reseller.
(o) "Subscriber Communicator" shall mean the equipment used by a remote
Subscriber to provide access to the ORBCOMM System that ha ' s been "Type
Approved" by or on behalf of ORBCOMM USA and to which a physical serial number,
device control number, associated radio identification codes and ORBCOMM System
Address have been assigned.
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(p) "Territory" shall mean the geographic or other market territory ~et
forth as Exhibit A hereto.
(q) "Type Approved" shall mean a series of tests conducted by or on
behalf of ORBCOMM USA that determines that a subscriber communicator
successfully meets ORBCOMM System requirements and FCC licensing requirements.
SECTION 2 - NON-EXCLUSIVE LICENSE
(a) ORBCOMM USA hereby grants to Reseller a non-exclusive license to
resell ORBCOMM Products and Services, either directly or through Agents, or
Subagents, in the Territory in accordance with ORBCOMM USA standards as set
forth in the ORBCOMM Reseller Operations Manual and all applicable laws, rules
and regulations of any Governmental Authority.
(b) Reseller may license Agents or Subagents to distribute ORBCOMM
Products and Services under this Agreement, provided that:
(i) Reseller is responsible for the observance by its
Agents and Subagents of all of the terms and conditions of this
Agreement; and
(ii) Reseller is liable for all payments due to ORBCOMM USA
for ORBCOMM Products and Services from Subscribers solicited by
Reseller and Reseller's Agents and Subagents.
(c) This Agreement only licenses the authorized use, promotion, and
resale of ORBCONIA4 Products and Services within the Territory.
SECTION 3 - TERM OF AGREEMENT
Subject to Section 14 hereof, the term of this Agreement shall commence
on the date hereof and continue for a period of one (1) year. Thereafter this
Agreement shall be renewed automatically for further terms of one (1) year each
unless either party gives to the other written notice of termination at least
sixty (60) days prior to the expiration of any such term.
SECTION 4 - 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
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the Facilities or operations of ORBCOMM USA or the ORBCOMM System. Reseller
shall not represent itself as a federal or state certified licensee of the
ORBCOMM System.
SECTION 5 - RESPONSIBILITIES OF RESELLER
(a) Reseller shall promote, solicit and market and use all reasonable
efforts to secure and retain Subscribers for the ORBCOMM System in the Territory
and shall maintain an adequate staff to perform such functions.
(b) Any representations by Reseller concerning the ORBCOMM System shall
be consistent with-the ORBCOMM Reseller Operations Manual.
(c) Reseller shall employ the highest standards of business conduct in
the performance of its obligations hereunder and shall not do anything that
would tend to discredit, dishonor, reflect adversely on or injure the reputation
of ORBCOMM USA, ORBCOMM Products and Services, the ORBCOMM System, Reseller, or
any Agent or Subagent of Reseller. Reseller shall comply with all applicable
laws, rules and regulations of any United States or foreign Federal, state or
local governmental agency or authority ("Governmental Authority") in the
performance of its obligations hereunder.
(d) Reseller shall provide adequate support and training to its Agents,
Subagents and Subscribers with respect to the use and operation of the ORBCOMM
System.
(e) Reseller shall be solely responsible for (i) billings to and
collections from its Subscribers and (ii) all amounts due to ORBCOMM USA under
Section 9 in accordance with invoices rendered by ORBCOMM USA with respect to
any ORBCOMM System Address assigned to a Subscriber until twenty-four (24) hours
after receipt by ORBCOMM USA of written notice from Reseller to disconnect any
such ORBCOMM System Address.
(f) As between ORBCOMM USA and Reseller, Reseller shall be responsible
for ensuring that all Subscriber Communicators sold or otherwise distributed by
it or its Agents or Subagents and 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
Authority. In the event any Subscriber Communicator does not meet the regulatory
requirements of the FCC or any other applicable Governmental Authority, Reseller
shall immediately remove all non-conforming Subscriber Communicators from the
ORBCOMM System and ORBCOMM USA shall have the right to terminate immediately
without notice such Subscriber Communicator's access to the ORBCOMM System.
(g) Reseller shall provide at its cost an adequate staff to respond to
customer inquiries relating to billing, Subscriber Communicators and related
software and operation of the ORBCOMM System. Reseller shall diligently
investigate any complaints from Subscribers relating to the operation of the
ORBCOMM System, and shall promptly report in writing to ORBCOMM USA any
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such complaints only after Reseller has confirmed that such complaint is based
on a reason other than the misuse or malfunctioning of Subscriber's equipment or
the failure of such equipment to meet technical standards for compatibility with
the ORBCOMM System.'To accomplish the foregoing, Reseller shall maintain, at its
own cost and expense, adequate staff and equipment to test Subscriber's
equipment to verify the cause of any complaints received by Reseller relating to
the ORBCOMM System. In the event Reseller fails to perform its obligations set
forth in this Section 5(g), ORBCOMM USA may at its sole discretion charge the
Reseller a maintenance or service charge for the performance by ORBCOMM USA of
such obligations, the amount of such charge to be in accordance with the ORBCOMM
USA Reseller Pricing Rate Schedule, a current copy of which is attached hereto
as Exhibit C and which may be amended by ORBCOMM USA upon 90 days prior written
notice (the "ORBCOMM USA Reseller Pricing Rate Schedule").
(h) Reseller shall, and shall cause each of its Agents or Subagents, to
enter into a contract with each of its Subscribers, which contract shall
include, at a minimum, the following language (and any other language that
ORBCOMM USA, on a prospective basis, may from time to time reasonably require
the Reseller or Reseller's Agents or Subagents to include);
(i) Subscriber shall not have and shall not acquire any
proprietary interest in the ORBCOMM System Address or any other numbers
or codes associated with or allocated to a Subscriber Communicator.
(ii) NONE OF ORBCOMM USA, ANY AFFILIATES OF ORBCOMM USA OR
THE RESELLER. HAS MADE, OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM
SYSTEM OR THE ORBCOMM PRODUCTS AND SERVICES. ORBCOMM USA, ANY
AFFILIATES OF ORBCOMM USA AND THE RESELLER EXPRESSLY DISCLAIMS WITH
RESPECT TO SUBSCRIBER AND SUBSCRIBER EXPRESSLY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF ORBCOMM
USA, ANY AFFILIATES OF ORBCOMM USA OR RESELLER. ARISING BY LAW 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 ORBCOMM
PRODUCTS AND SERVICES; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM
OR REMEDY UNDER ANY THEORY OF LAW, INCLUDING ANY TORT, NEGLIGENCE,
STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY; NO
REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT 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
USA, ANY AFFILIATE OF ORBCOMM USA OR RESELLER.
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(iii) Subscriber acknowledges and understands that (A) the
ORBCOMM System may be operated under licenses granted by the FCC, (B)
one of the conditions to the use of such licenses is non-interference
with other users of the frequency bands covered by such licenses, (C)
at any time and for any reason, the FCC may revoke, terminate or render
unusable any or all of the licenses granted to Orbital Communications
Corporation for use in connection with the ORBCOMM System, and (D) the
ORBCOMM System is an untested, new business venture involving a new
satellite system design and entails a high degree of risk of delay in
or cancellation of deployment, launch vehicle, satellite and other
equipment or software failure or impaired performance and there can be
no assurance that the ORBCOMM System will be an economically viable
system even if successfully deployed. IF ANY OF THE EVENTS ENUMERATED
HEREIN SHALL OCCUR, NONE OF ORBCOMM USA, ITS AFFILIATES OR RESELLER
SHALL BE LIABLE TO SUBSCRIBER FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL
DAMAGES, LOSSES, LIABILITIES, CLAIMS, COSTS OR EXPENSES OF ANY KIND OR
NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY ECONOMIC LOSS OR
OTHER LOSS OF PROFITS, BUSINESS OR GOODWILL.
(iv) Subscriber acknowledges that ORBCOMM USA shall supply
the service that is the subject of. this Agreement on a good faith
effort basis and that service failures and interruptions may occur and
are difficult to assess as to cause or resulting damages. The parties
agree that ORBCOMM USA, its affiliates and Reseller shall not be liable
to Subscriber for any losses or damages 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, alternation of, or use of
records, associated with the ORBCOMM System or ORBCOMM Products and
Services, whether for breach of contract, tortuous behavior,
negligence, or under any other cause of action.
(v) IN NO EVENT SHALL ORBCOMM USA, ITS AFFILIATES OR
RESELLER HAVE ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY TO THE
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 USA or Reseller exceed an
amount equivalent to the proportionate charge to Subscriber for the
period of the service disruption or the amount of one thousand U.S.
dollars ($ 1,000.00), whichever is less.
(vi) Use of the ORBCOMM System outside the United States has
not yet been authorized by the applicable foreign Governmental
Authorities. Until such time as all necessary permits, approvals and
authorizations to do so have been received from such foreign
Governmental Authorities, use of the ORBCOMM System outside the United
States is not authorized.
(i) In all advertising and promotional materials for the Territory,
Reseller shall identify the ORBCOMM System and the ORBCOMM Products and Services
as being provided by
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ORBCOMM USA. All advertising and promotional materials that contain references
to the ORBCOMM System or ORBCOMM USA shall be in accordance with the ORBCOMM
Identity Manual attached hereto as Exhibit D (the "ORBCOMM Identity Manual").
Reseller shall be required to obtain the prior written consent of ORBCOMM USA
for all such advertising and promotional materials, provided that if the
Reseller complies with the terms of the ORBCOMM Identity Manual with respect to
references to the ORBCOMM System, the ORBCOMM Products and Services or ORBCOMM
USA, the advance written approval of ORBCOMM USA shall not be required. Any use
of the word "ORBCOMM" or the phrase "ORB" combined with any other word or phrase
for a logo, trademark, service mark or trade name shall also require the prior
written approval of ORBCOMM USA.
Reseller shall maintain a sufficient inventory of Subscriber
Communicators for the ORBCOMM System in good working order for purposes of
spares, demonstration 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.
(k) Reseller shall promptly notify ORBCOMM USA, in a manner prescribed
by ORBCOMM USA in its ORBCOMM Reseller Operations Manual, of each Subscriber
addition, ORBCOMM System Address change or Subscriber deletion from the ORBCOMM
System.
(1) Reseller shall not abuse or fraudulently use the ORBCOMM System in
violation of Section 12 hereof.
(m) Reseller shall promptly investigate. all instances of questionable
subscriber high usage (exceeding a predicted normal usage) after receipt of
notification from ORBCOMM USA that such subscriber usage has exceeded normal
historic trends. Such findings shall be reported immediately to ORBCOMM USA for
evaluation.
(n) During the term of this Agreement, Reseller shall be responsible
for all federal, state, or local licenses, pen-nits, or clearances that may be
required in connection with the performance of its obligations hereunder.
(o) Except in connection with a Multinational Account, Reseller shall
not submit to ORBCOMM USA for activation of ORBCOMM service Subscriber
Communicators, the billing address for which is outside of the United States,
unless otherwise agreed to in advance in writing by ORBCOMM Global. In the event
Reseller wishes to have ORBCOMM USA activate ORBCOMM service for a Subscriber
that will use Subscriber Communicator(s) in the United States and in other
countries or territories, Reseller shall contact ORBCOMM USA and request that
ORBCOMM USA attempt to establish a Multinational Account with the ORBCOMM System
licensee in such other country or territory.
(p) Prior to implementation, Reseller shall provide to ORBCOMM USA for
its review and certification, which shall be in accordance with the ORBCOMM
Applications Developers Handbook (the "Applications Handbook"), a copy of which
has been provided to Reseller, a copy of
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all application software Reseller or its Agents or Subagents intend to use in
connection with the ORBCOMM System. After initial certification by ORBCOMM USA,
Reseller shall at all times ensure that such applications software remains
certified in accordance with the Applications Handbook.
SECTION 6 - RESPONSIBILITIES OF ORBCOMM USA
(a) ORBCOMM USA shall provide to Reseller and to its Subscribers access
to the ORBCOMM System and, subject to the terms of the Section 15 hereof, shall
use its good faith efforts to provide continuous network service.
(b) ORBCOMM USA shall establish standards for its service marks,
trademarks and trade names, as contained in the ORBCOMM Identity Manual, for all
advertising, promotional and Subscriber training materials to be used or
distributed by Reseller or its Agents or Subagents that relate to ORBCOMM USA,
the ORBCOMM System or any ORBCOMM Products and Services.
(c) Subject to the provisions of Section 15(b)(i), ORBCOMM USA shall
maintain all licenses necessary or required by the FCC or any other Governmental
Authority for ORBCOMM USA to provide ORBCOMM Products and Services in the United
States.
(d) Upon receipt of the notice referred to in Section 5(k) hereof,
ORBCOMM USA shall perform the action requested within three (3) business days.
(e) ORBCOMM USA shall provide to Reseller on a timely basis raw usage
data setting forth its Subscriber's use of the ORBCOMM System so that the
Reseller may bill its Subscribers.
(f) Upon receipt of a request described in Section 5(o), ORBCOMM USA
shall attempt to establish a Multinational Account with the appropriate ORBCOMM
System licensee.
(g) ORBCOMM USA shall review all application software object code
provided by Reseller pursuant to Section 5(p) within thirty (30) days of receipt
in accordance with the procedures set forth in the Applications Handbook.
SECTION 7 - TRADE NAME, TRADEMARKS, AND OTHER RIGHTS AND INTERESTS
(a) Both parties agree and acknowledge that "ORBCOMM" and all related
designs are service marks, trademarks and a trade name that are owned by ORBCOMM
Global, Orbital Communications Corporation, or any of their Affiliates. ORBCOMM
USA.-hereby grants to Reseller and its Agents and Subagents the right to use
such service marks and all related designs, trademarks and trade names in the
Territory solely in connection with activities authorized under this Agreement
and in furtherance of the purposes of this Agreement, provided that such rights
to use the ORBCOMM name and all related designs shall terminate immediately and
without further action
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upon the termination or expiration of this Agreement. Reseller and its Agents
and Subagents shall use such service marks, trademarks and trade names in all of
their printed and electronic media material that refer to ORBCOMM USA, the
ORBCOMM System or ORBCOMM Products and Services either directly or indirectly,
and all such use shall (i) conform to all ORBCOMM USA requirements for use of
its service marks, trademarks, trade names and designs including registry and
trademark symbols set forth in' the ORBCOMM Identity Manual, and (ii) identify
ORBCOMM Products and Services as products and services of ORBCOMM USA and/or its
Affiliates, as the case may be.
(b) Reseller shall cooperate with ORBCOMM USA in providing support and
any information that may be required in defense of ORBCOMM trademarks, designs
or patents as a result of their use pursuant to this Agreement.
(c) ORBCOMM USA reserves the right to revoke the license to use its
service marks, trademarks or trade names or designs if in its sole discretion it
determines that the Reseller or its Agents or Subagents has improperly used such
material.
(d) Reseller and its Agents and Subagents agree not (i) to engage in
any activities or commit any acts, directly or indirectly, that may contest,
dispute or otherwise impair such right~ title and interest or (ii) to re-license
use of ORBCOMM USA's service marks, trademarks or trade names to any other
Person, other than with respect to Reseller its Agents or Subagents without the
express written consent of ORBCOMM USA. After the expiration or termination of
this Agreement, Reseller and its Agents and Subagents agree not to register or
use any service marks, trademarks or trade names that are the same as, or
confusingly similar to, service marks, trademarks or trade names of ORBCOMM USA
or any Affiliate of ORBCOMM USA. Reseller and its Agents and Subagents agree to
promptly return to ORBCOMM USA all such material or to destroy it upon express
instructions from ORBCOMM USA.
SECTION 8 - NON-COMPETITION
During the term of this Agreement and for a period not less than two
(2) years after the termination or expiration thereof, except if such
termination is caused by the default of ORBCOMM USA as provided in Section 13
hereof, Reseller shall not directly or indirectly, and shall cause its
Affiliates not to directly or indirectly, engage in or invest in, or be an
owner, officer, director, partner, five (5%) percent or more shareholder, or
employee of, or a consultant to or for, any operation, venture or business that
conducts or resells any wireless, two-way, low-Earth orbit nongeostationary,
non-voice, mobile satellite communications or messaging service using radio
frequencies below 1GHz that is or will be in competition with ORBCOMM USA.
Reseller shall require its Agents and Subagents to execute a non-competition
agreement substantially identical to the foregoing and Reseller agrees to
terminate its relationship with such Agent or Subagent in the event such Agent
or Subagent as the case may be, violates the terms 'of such non-competition
agreement.
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SECTION 9 - FEES AND PAYMENT TERMS
(a) Reseller shall pay for all services rendered through the expiration
or termination of this Agreement. For each of its Subscribers, Reseller shall
pay to ORBCOMM USA the price set forth in the ORBCOMM USA Reseller Pricing Rate
Schedule. Notwithstanding the foregoing, prices charged by Reseller to its
Subscribers for ORBCOMM Products and Services shall be determined solely by
Reseller.
(b) ORBCOMM USA reserves the right to require Reseller to make a cash
deposit or to supply ORBCOMM USA with an irrevocable standby letter of credit in
favor of ORBCOMM USA issued by a bank acceptable to ORBCOMM USA, based on
ORBCOMM USA's review of Reseller's credit worthiness.
(c) All amounts due to ORBCOMM USA under this Agreement shall be paid
by Reseller in U.S. dollars by check or wire transfer in accordance with the
terms set forth in Exhibits B and C. as such terms may be modified by ORBCOMM
USA. Payments must be received by ORBCOMM USA by the date indicated on the
invoice in order to be considered paid on time and thereby avoid service
interruption.
SECTION 10 - RESELLER REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Reseller represents and wan-ants to ORBCOMM USA that (i) Reseller
is a corporation, duly organized or formed, validly existing and in good
standing under the laws of the state of its incorporation, (ii) the execution,
delivery and performance of this Agreement by Reseller have been duly authorized
by all necessary action 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 and shall have all licenses, permits and other
authorizations from all Governmental Authorities necessary for Reseller to
perform its obligations under this Agreement~ (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 fl-ds Agreement and (vi)
Reseller is reselling ORBCOMM Products and Services to third parties and has
provided ORBCOMM USA with a copy of a valid resale tax certificate, and
accordingly, ORBCOMM USA is not required to collect from Reseller any sales,
use, excise or other similar tax on ORBCOMM Products and Services provided by
ORBCOMM USA to Reseller.
(b) Reseller agrees to indemnify and hold harmless ORBCOMM USA and' its
Affiliates, 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 Resellees breach of any
representations, warranties, covenants or agreements contained herein.
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SECTION 11 - PROPRIETARY INFORMATION
The parties acknowledge the execution of the Mutual Non-Disclosure
Agreement dated as of May 18, 1995 and agree to observe the provisions thereof,
provided however that Article II(a) shall be amended to change the phrase "three
years from the date of disclosure" appearing therein to "three years after the
termination or expiration of the ORBCOMM USA Reseller Agreement dated as of
_________________ between ORBCOMM USA and Intrex Data Communications Group.
SECTION 12 - RESTRICTIONS ON ACCESS
(a) 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
or its Agents or Subagents or their Subscribers. The 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, Subagents or Subscribers. Abuse and fraudulent use of the ORBCOMM System
includes, but is not limited to:
(i) Attempting or assisting another Person (A) to 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 USA or (B) to use any scheme,
false representation or false credit device, with the intent to avoid
payment for, in whole or in part, ORBCOMM Products and 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 deemed
to be, in ORBCOMM USA's sole judgment, obscene, salacious or prurient,
or to convey information of an unlawful nature or in an unlawful
manner.
(b) ORBCOMM USA may, by written notice to Reseller, require Reseller to
cancel the' right to use the ORBCOMM System of any Subscriber determined by
ORBCOMM USA or Reseller to be abusing or fraudulently using the ORBCOMM System
within fifteen (15) days of receipt by Reseller of such notice. Notwithstanding
the foregoing, if any Agent, Subagent or Subscriber is abusing or fraudulently
using the ORBCOMM System as specified in Section 12(a)(iii), Reseller shall
immediately cancel such Agent's, Subagent's or Subscriber's access to the
ORBCOMM System.
(c) The parties understand and acknowledge that from time to time one
or more resellers or subscribers may deliberately interfere with the operation
of the ORBCOMM System in such a way as to impair the quality of service provided
by ORBCOMM USA to its other resellers and subscribers. Accordingly, in order to
maintain the quality of service for all users of the ORBCOMM System upon
discovery of, or upon reasonable suspicion of any such deliberate interference
or abuse
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by a reseller or subscriber ORBCOMM USA shall have the right to discontinue
service to such reseller or subscriber who is the offending party.
(d) Reseller shall notify its Subscribers regarding the foregoing
restrictions on fraudulent use, deliberate interference, and abuse.
SECTION 13 - DEFAULT
The following events shall constitute events of default ("Events of
Default") under this Agreement:
(a) Reseller shall fail to observe or perform any of its
covenants or agreements contained in the second sentence of each of
Section 5(f) or Section 12(b) or the Reseller shall abuse or
fraudulently use the ORBCOMM System in violation of Section 12(a)(iii);
(b) A party shall fail to observe or perform any of its
covenants or agreements contained in this Agreement (other than as
specified in Section 13(a) or Section 13(e)) or in any other agreement
or document executed pursuant hereto and such failure remains uncured
for a period of thirty (30) days after receipt by the breaching party
of written notice of such failure;
(c) Any representation or warranty of Reseller contained in
this Agreement shall prove to be false or misleading in any material
respect;
(d) (i) A party shall (A) make an assignment for the benefit
of creditors, (B) file a petition in bankruptcy, (C) be adjudicated
insolvent or bankrupt, (D) petition or apply to any tribunal for any
receiver or for any trustee for it under any reorganization,
arrangement, readjustment of debt dissolution or liquidation law or
statute or (ii) a party shall have commenced against it any such
proceeding or an order for relief shall be entered that remains
undismissed for a period of sixty (60) days, such party by any act
indicates its consent to, approval of, or acquiescence in, any such
proceeding, order for relief or the appointment of any receiver of or
any trustee for it or suffers any such receivership or trusteeship to
continue undischarged for a period of sixty (60) days; or
(e) The Reseller fails to pay any amount to ORBCOMM USA when
due if such failure shall continue unremedied for a period of ten (10)
days after Reseller's receipt of notice thereof from ORBCOMM USA.
SECTION 14 - TERMINATION
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(a) Upon the occurrence of an Event of Default, the party not in
default shall have the right to terminate this Agreement immediately, provided
that the covenants, agreements and obligations specified in Sections 7(d), 8, 9,
10(b), 11, 15, 16 and 18(d) shall survive the termination of this Agreement as
specified herein.
(b) Upon termination of this Agreement by ORBCOMM USA pursuant to
Section 14(a), ORBCOMM USA shall be entitled to contact each Subscriber for the
purpose of advising such Subscribers as to how -such Subscribers may maintain
access to the ORBCOMM System after termination of this Agreement. In such event
or upon expiration of the term of this Agreement, Reseller (i) shall cooperate
with ORBCOMM USA 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 USA to provide ORBCOMM Products and Services to
such Subscriber or (ii) shall promptly provide ORBCOMM USA with sufficient
information on Reseller's Subscribers so that ORBCOMM USA can arrange for the
provision of ORBCOMM Products and Services to such Subscribers, provided that
ORBCOMM USA 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) In the event ORBCOMM USA terminates this Agreement pursuant to
Section 14(a), without incurring any liability to the Reseller or its Agents,
Subagents; or Subscribers, ORBCOMM USA may terminate or temporarily discontinue
furnishing service to Reseller. Reseller shall indemnify and hold harmless
ORBCOMM USA from any such liability for such termination or temporary
discontinuation of service to Reseller's Agents, Subagents or Subscribers.
(d) Subject to Section 15, termination of this Agreement 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.
(e) After termination of this Agreement, Reseller shall remain solely
responsible for its obligations to its Subscribers existing immediately prior to
termination
(f) Upon the giving or receiving of any notice of termination, ORBCOMM
USA shall be entitled to, without liability, cancel any previously accepted
orders for ORBCOMM System Address that have not yet been connected.
(g) Upon termination, Reseller shall return promptly all ORBCOMM
property, including manuals and equipment other than equipment that has been
paid for in full by Reseller.
SECTION 15 - DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
(a) DISCLAIMER OF WARRANTIES.
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(i) NONE OF ORBCOMM USA 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 PRODUCTS AND SERVICES. ORBCOMM USA AND ITS
AFFILIATES EXPRESSLY DISCLAIM WITH RESPECT TO RESELLER AND ITS AGENTS,
SUBAGENTS, AND SUBSCRIBERS, AND RESELLER (ON ITS OWN BEHALF AND ON BEHALF OF ITS
AGENTS, SUBAGENTS, AND SUBSCRIBERS) HEREBY EXPRESSLY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF ORBCOMM USA AND
ITS AFFILIATES ARISING BY LAW 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 ORBCOMM PRODUCTS AND SERVICES;
AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY UNDER ANY THEORY OF
LAW, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL
OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING,
BUT NOT 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
USA.
(ii) Reseller shall ensure that all of its Agents and Subagents agree
to the foregoing waiver of rights and claims as well as those set forth in
Section 15(b)(i) as a precondition to use the ORBCOMM System.
(b) LIMITATION OF LIABILITY.
(i) Each of the parties acknowledges and understands that (A) the
ORBCOMM System may be operated under licenses granted by the FCC; (B) one of the
conditions to the use of such licenses is non-interference with other users of
the frequency bands covered by such licenses; (C) at any time and for any
reason, the FCC may revoke, terminate or render unusable any or all of the
licenses granted to Orbital Communications Corporation for use in connection
with the ORBCOMM System; and (D) the ORBCOMM System is an untested, new business
venture involving a new satellite system design and entails a high degree of
risk of delay in or cancellation of deployment, launch vehicle, satellite and
other equipment or software failure or impaired performance and there can be no
assurance that the ORBCOMM System will be an economically viable system even if
successfully deployed. IF ANY OF THE EVENTS ENUMERATED IN THIS SECTION 15(b)(i)
SHALL OCCUR, NEITHER ORBCOMM USA NOR RESELLER SHALL BE LIABLE TO THE OTHER FOR
ANY DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, LIABILITIES, CLAIMS,
COSTS OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED
TO, ANY ECONOMIC LOSS OR OTHER LOSS OF PROFITS, BUSINESS OR GOODWILL.
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(ii) Reseller acknowledges that ORBCOMM USA shall supply the service
that is the subject of this Agreement 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 ORBCOMM USA and its
Affiliates shall not be liable to Reseller or any of its Agents, Subagents and
Subscribers for any losses or damages arising out of any failure of performance,
error, omission, interruption, deletion, defect, delay in operation or
transmission, communications line failure, theft or destruction or unauthorized
access to, alteration of, or use of records, associated with the ORBCOMM System
or ORBCOMM Products and Services, whether for breach of contract, tortuous
behavior, negligence, or under any other cause of action.
(iii) Neither ORBCOMM USA nor any of its Affiliates shall be liable for
any act br omission of Reseller or any other Person furnishing equipment,
products or services to ' Reseller or its Agents, Subagents or Subscribers, nor
shall ORBCOMM USA or any of its Affiliates be liable for any damages or losses
due to the fault or negligence of Reseller or its Agents, Subagents or
Subscribers or the failure of such equipment, products or services.
(iv) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY HAVE ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
TO THE OTHER UNDER THIS AGREEMENT FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY
OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. In addition, in no event
shall any liability of ORBCOMM USA or its Affiliates exceed an amount equivalent
to the proportionate charge to Reseller for the period of the service disruption
or the amount of ten thousand U.S. dollars ($10,000), whichever is less.
SECTION 16 - DISPUTE RESOLUTION
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by final and binding arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules. Such arbitration shall take place in Washington, D.C. before
a panel of three (3) 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 jurisdiction, subject matter
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.
SECTION 17 - TAXES
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Reseller shall be responsible for the payment of all federal, state,
and local taxes, including but not limited to sales, use, gross receipts, and
excise taxes, that arise from the performance of its duties under this
Agreement, including all taxes owed by or collected from its Subscribers.
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 (1) business day after being sent by
express or courier mail, or three (3) 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 USA:
ORBCOMM USA, L.P.
21700 Atlantic Boulevard
Dulles, VA 20166
Facsimile: (703) 404-8012
Attention: General Counsel
RESELLER:
Intrex Data Communications Group
3410 Main Street
Dallas, Texas 75226
Attention: Peter J. Lagergren
President
Telephone: (214) 748-8085
Facsimile: (214) 761-0632
(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 hereunder, including, but not limited to,
Reseller's Subscriber accounts, shall be assigned or transferred (by operation
of law or otherwise) to any Person without the prior written consent of the
other party; provided that ORBCOMM USA may assign this Agreement without the
prior consent of Reseller to any Person acquiring all or substantially all of
the assets of ORBCOMM USA whether by purchase, merger, acquisition of shares, or
any other means.
(c) ENTIRE AGREEMENT. This Agreement and all attachments (which are
hereby made part of this Agreement) contain the entire understanding between
Reseller and ORBCOMM USA 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
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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.
(d) GOVERNING LAW . 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
Commonwealth of Virginia, without giving effect to the conflict or choice of law
provisions hereof. Neither party may bring any action for a claim under this
Agreement later than one (1) 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 (1) 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.
(e) WAIVER. It is understood and agreed that no failure or delay by
either ORBCOMM USA 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
the party sought to be bound.
(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) OTHER RESELLERS. Reseller acknowledges and agrees that ORBCOMM USA
may market ORBCOMM Products and Services through other resellers and directly to
Subscribers for its own account and that Subscribers of Reseller may wish to
obtain ORBCOMM Products and Services directly from ORBCOMM USA or through other
resellers.
(j) TARIFFS. In the event that any ORBCOMM Products and Services or the
charges made therefore are currently subject, or at any time become subject to
any federal, state or local regulation or tariff, then the terms and conditions
of this Agreement, including the prices set forth in the ORBCOMM USA Reseller
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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
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ORBCOMM USA, L.P.
By:
Name: Alan L. Parker
Title: President
INTREX DATA COMMUNICATIONS GROUP
BY:
Name: Peter J. Lagergren .
Title: President
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