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EXHIBIT 10.19
SUBSCRIBER COMMUNICATOR MANUFACTURE AGREEMENT
This Subscriber Communicator Manufacture Agreement
("Agreement") is made and entered into as of the 31st day of July, 1996 between
Magellan Corporation ("Magellan") whose principal business address is ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ORBCOMM Global, L.P.
("ORBCOMM"), whose principal business address is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H
WHEREAS, Orbital Communications Corporation ("OCC"), an
affiliate of ORBCOMM, has obtained a license from the Federal Communications
Commission (the "FCC") to operate in the United States a system of up to 36
low-Earth orbit satellites that is intended to provide two-way data
communications, messaging and position determination services throughout the
world;
WHEREAS, ORBCOMM, through its affiliates, ORBCOMM USA, L.P.
("ORBCOMM USA") and ORBCOMM International Partners, L.P. ("ORBCOMM
International"), and their international licensees intend to provide ORBCOMM
System services and generally to rely on selected companies on a non-exclusive
basis to design, test, manufacture, sell, support and service Subscriber
Communicators using the ORBCOMM System; and
WHEREAS, Magellan desires to design, develop, test,
manufacture, sell, support and service Subscriber Communicators to be used with
the ORBCOMM System under the terms and conditions set forth in 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:
1. DEFINITIONS.
(a) "Applicable Benchmark Specification" shall mean the Benchmark
Specification in effect on the later of the (i) date of original manufacture and
(ii) the date of any re-manufacture, repair, change or modification as a result
of a recall, as required by this Agreement or as voluntarily initiated by
Magellan.
(b) "Benchmark Specification" shall mean the version of the
Specifications that are the current version in effect on the latest of (i) the
date of execution of this Agreement, (ii) ninety (90) days prior to acceptance
for Type Approval testing of a Candidate Subscriber Communicator, and (iii) the
date of the last Type 1 or Type 2 change to the Specifications.
(c) "Benchmark Version of the ORBCOMM Software" shall mean the
version of the ORBCOMM Software that is the current version in use on the latest
of (i) the date of execution of this Agreement, (ii) ninety (90) days prior to
acceptance for Type Approval testing of a Candidate Subscriber Communicator and
(iii) the date of the last Type 1 or Type 2 change to the Network Software
and/or Subscriber Communicator Software.
(d) "Candidate Subscriber Communicator" shall mean the equipment
that could be used to
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provide access to the ORBCOMM System for which Magellan is seeking "Type
Approval" by ORBCOMM pursuant to the terms of this Agreement.
(e) "Device Control Number" shall mean the control number issued by
ORBCOMM with which a specific pair of Radio Identification Codes is associated.
The Device Control Number provides a means to refer to a pair of Radio
Identifications Codes without disclosing such codes.
(f) "Lot" shall mean the smaller of the number of Subscriber
Communicators produced in a consecutive production run and the number of
Subscriber Communicators produced in a twenty-four (24) hour period.
(g) "Manufacturer's Serial Number" shall mean that unique number
assigned to a Subscriber Communicator by Magellan for the purpose of
identification of such Subscriber Communicator.
(h) "Network Software" shall mean the software in the Satellites and
ORBCOMM Gateways that affect the Subscriber Communicator.
(i) "Network Test Set" shall mean a device that simulates the
non-Subscriber Communicator elements of the ORBCOMM System to the extent
necessary in the design and testing of a Candidate Subscriber Communicator or
Subscriber Communicator.
(j) "ORBCOMM Gateway" shall mean the facilities consisting of earth
stations, computers, displays, control consoles, communications equipment and
other hardware that transport and control the flow of data and message
communications and other information for the ORBCOMM System.
(k) "ORBCOMM Software" shall mean the software contained in the
Satellites, the ORBCOMM Gateways and the Subscriber Communicators that ORBCOMM
has developed, purchased or licensed and has tested to develop the ORBCOMM
System.
(l) "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 or any successors and assigns thereof.
(m) "ORBCOMM System Numbers" shall mean the unique numbers assigned
to each Subscriber Communicator. For purposes of this Agreement, each Subscriber
Communicator shall have a Manufacturer's Serial Number assigned by Magellan and
a Device Control Number and associated Radio Identification Codes.
(n) "Radio Identification Codes" shall mean the pair of codes that
will be used by the ORBCOMM System to identify the Subscriber Communicator and
that have been provided by ORBCOMM to Magellan pursuant to the terms of this
Agreement.
(o) "Satellites" shall mean any of the low-Earth orbit satellites
comprising the constellation portion of the ORBCOMM System.
(p) "Specifications" shall mean the functional and design
requirements the Subscriber Communicator must meet that are contained in Exhibit
A.
(q) "Subscriber Communicator" shall mean the equipment to be
manufactured by Magellan and used to provide access to the ORBCOMM System that
has been "Type Approved" by ORBCOMM
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and to which ORBCOMM System Numbers have been assigned. A Subscriber
Communicator can be either a finished product (an "End User Subscriber
Communicator"), or it can be a Subscriber Communicator that is incorporated in
another finished product ("OEM Subscriber Communicator").
(r) "Subscriber Communicator Software" shall mean the
ORBCOMM-developed communications software that is integrated into a Subscriber
Communicator.
(s) "Type Approval" shall mean the approval for use with the ORBCOMM
System granted by ORBCOMM for each model of Candidate Subscriber Communicator
(also referred to as "Type") based on ORBCOMM's determination that such Type of
Candidate Subscriber Communicator meets the requirements of the Specifications
and successfully meets the testing requirements specified in Section 6 of this
Agreement. Each Candidate Subscriber Communicator Type shall require a separate
Type Approval.
2. TERM.
Subject to the provisions of Section 17 hereof, this
Agreement shall have a term of ten (10) years, commencing on the effective
date of this Agreement.
3. DUTIES OF MAGELLAN.
(a) Magellan has designated ▇▇. ▇▇▇▇ ▇▇▇▇▇, Project Manager, ORBCOMM
Subscriber Communicators, as the single point of contact within Magellan's
organization responsible for coordinating all activities related to this
Agreement including but not limited to Specifications, technical requirements,
warranty issues and any and all other information Magellan reasonably requires
regarding the ORBCOMM System as currently designed or as may be planned in the
future; provided that the Project Manager, ORBCOMM Subscriber Communicators
shall not be authorized to amend or modify or to waive any provisions of this
Agreement. Such designated Project Manager, ORBCOMM Subscriber Communicators may
be changed by Magellan on written notice to ORBCOMM.
(b) Magellan agrees to employ the highest standards of business
conduct in the performance of its obligations hereunder and to manufacture and
distribute Subscriber Communicators in a manner so as not to injure
intentionally the reputation of ORBCOMM, its affiliates, the ORBCOMM System or
other Subscriber Communicator manufacturers.
(c) Magellan acknowledges that changes made to the Network Software
may affect the operation of the Subscriber Communicators. Magellan shall be
responsible for ensuring that each Subscriber Communicator Type is compatible
with the current version of the Network Software in accordance with Section 11.
(d) During the term of this Agreement, Magellan shall manufacture or
cause to be manufactured the Subscriber Communicators in accordance with the
Specifications.
(e) Magellan shall establish a or use its existing sales,
distribution, and service organization as appropriate for each major market in
which it intends to sell Subscriber Communicators. Such organization shall be
capable of answering technical questions, shall have the authority to negotiate
sales of Subscriber Communicators with resellers, agents and customers of the
ORBCOMM System and shall be capable of providing warranty and out-of-warranty
repair service.
(f) For Subscriber Communicators placed into service prior to the
termination or expiration
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of this Agreement, Magellan shall, for a period of two years from the
discontinuation of the manufacture of a Type of Subscriber Communicator,
maintain sufficient replacement units or sufficient parts, components, and
repair capabilities for each market to comply with its obligations under Section
12.
(g) Magellan shall request from ORBCOMM in writing the Device
Control Number and associated Radio Identification Codes at least ten (10)
business days before Magellan requires such numbers for allocation to Subscriber
Communicators, provided that such requests shall occur no more frequently than
once per month. After receipt of the Device Control Number and associated Radio
Identification Codes, Magellan shall assign to each Subscriber Communicator the
ORBCOMM System Numbers. Magellan and its OEM customers shall at no time reassign
from one Subscriber Communicator or OEM Subscriber Communicator to another any
of the ORBCOMM System Numbers.
(h) Magellan shall deliver to ORBCOMM within fifteen (15) days of
the end of each calendar month a list of all Subscriber Communicators, and the
corresponding Manufacturer's Serial Numbers cross-referenced to the Device
Control Numbers, (i) shipped to ORBCOMM resellers, agents, or customers during
the preceding month or (ii) returned to Magellan or its OEM customers for
warranty or out-of-warranty service during the preceding month, together with a
description of the service problem identified for each returned Subscriber
Communicator.
(i) Prior to entering into any agreement pursuant to which Magellan
would manufacture OEM Subscriber Communicators for a third party that is not an
affiliate of Magellan or its parent company, Magellan shall submit sufficient
technical details of the proposed incorporation of the OEM Subscriber
Communicator into another device so as to enable ORBCOMM to determine to its
satisfaction that such incorporation would not invalidate the Type Approval.
Such OEM customer shall be obligated to implement the incorporation of the OEM
Subscriber Communicator into such end-product in accordance with the technical
details so supplied by Magellan. Magellan shall require its OEM customers to
comply with, and shall include in any agreement it enters into with its OEM
customers, the applicable provisions of Sections 3(g) and 3(h)(ii).
4. DUTIES OF ORBCOMM.
(a) ORBCOMM shall provide technical support related to this
Agreement including but not limited to Specifications, technical requirements,
warranty issues and any and all other information regarding the ORBCOMM System
as currently designed or as may be planned in the future. ORBCOMM has designated
Mr. ▇▇▇▇ ▇▇▇▇, as the ORBCOMM Product Manager. The ORBCOMM Product Manager shall
be the single point of contact within ORBCOMM's organization responsible for
coordinating activities and providing such technical support. The ORBCOMM
Product Manager shall not be authorized to amend or modify or to waive any
provisions of this Agreement. Such designated ORBCOMM Product Manager may be
changed by ORBCOMM on written notice to Magellan.
(b) ORBCOMM shall provide to Magellan the Specifications and any
other technical documentation or material ORBCOMM reasonably determines may be
required by Magellan to perform its obligations hereunder.
(c) ORBCOMM shall provide to Magellan one Network Test Set and a
Network Test Set manual, which Magellan shall be entitled to use for the term of
this Agreement. ORBCOMM shall maintain the Network Test Set in good working
order, normal wear and tear excepted; provided however, that (i) for repair work
by ORBCOMM the Network Test Set shall be shipped to a facility designated by
ORBCOMM, all shipping and handling charges to such facility prepaid by Magellan
and all shipping and
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handling charges from such facility back to Magellan prepaid by ORBCOMM and (ii)
Magellan shall reimburse ORBCOMM for any and all expenses incurred by ORBCOMM in
maintaining such Network Test Set which, in the opinion of ORBCOMM, are
attributable to misuse, mishandling or tampering, modification or other
unauthorized action by Magellan. On expiration or termination of this Agreement,
the Network Test Set and manual shall be immediately returned to ORBCOMM in good
working order, normal wear and tear excepted. In the event ORBCOMM reasonably
determines that Magellan would require the use of a Network Test Set to fulfill
its obligations under Section 12 that survive the expiration or termination of
this Agreement, ORBCOMM shall make available to Magellan one Network Test Set
and one manual for the duration of such surviving obligations. On the expiration
of such period, the Network Test Set and manual shall be immediately returned to
ORBCOMM in good working order.
(d) Within ten (10) business days of receipt of the request from
Magellan specified in Section 3(g), ORBCOMM shall provide a sufficient quantity
of Device Control Numbers and associated Radio Identification Codes for use by
Magellan in accordance with the terms of this Agreement.
(e) ORBCOMM agrees to employ the highest standards of business
conduct in the performance of its obligations hereunder in a manner so as not to
injure intentionally the reputation of Magellan or its affiliates.
5. COMMUNICATOR TYPE APPROVAL.
(a) ORBCOMM shall grant Type Approval for each Type of Candidate
Subscriber Communicator that ORBCOMM determines meets the Benchmark
Specifications and successfully meets the testing requirements specified in
Section 6 of this Agreement. ORBCOMM shall be entitled to revoke or suspend Type
Approval for each Subscriber Communicator Type that, after receipt of initial
Type Approval, fails to meet the Specifications or the testing requirements
specified in Section 6 of this Agreement that were in effect at the time of
grant of such initial Type Approval.
(b) ORBCOMM hereby authorizes Magellan to manufacture and sell each
Type of Subscriber Communicator that has received Type Approval from ORBCOMM.
Magellan shall not be entitled to sell any Candidate Subscriber Communicator
Type until ORBCOMM provides Type Approval thereof.
(c) Magellan shall immediately notify ORBCOMM of any changes in
design or functionality of any Subscriber Communicator Type subsequent to
ORBCOMM's providing the initial Type Approval thereof; provided however, that
Magellan shall not be required to provide ORBCOMM with notice of (i) cosmetic
design changes or (ii) changes to hardware and/or software encapsulated in the
same case as a Subscriber Communicator Type if such hardware and/or software (A)
is not interconnected to such Subscriber Communicator Type or (B) does not
provide functionality required by the Applicable Benchmark Specification. Within
five (5) business days after receipt of such notice, ORBCOMM shall notify
Magellan: (i) whether such changes in design or functionality require that a
Subscriber Communicator Type be resubmitted for Type Approval testing; or (ii)
that ORBCOMM cannot make the determination specified in (i) until it has
received and evaluated two (2) subscriber communicators of such new Type. In the
event ORBCOMM has determined that it requires two (2) such subscriber
communicators, such units shall be provided to ORBCOMM for such evaluation and
testing. Within ten (10) business days of receipt of such units, ORBCOMM shall
notify Magellan that such changes in design or functionality require that a
Subscriber Communicator Type be resubmitted for Type Approval testing or that
such requirement for additional Type Approval testing is waived.. In the event
that ORBCOMM determines that additional Type Approval testing in required,
Magellan shall, at its
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option, (A) withdraw its request for that such changes in design or
functionality be permitted under the previously granted Type Approval or (B)
submit a subscriber communicator incorporating such changes in design or
functionality as a Candidate Subscriber Communicator through the standard Type
Approval process.
(d) If at any time following Type Approval by ORBCOMM of any
Subscriber Communicator Type, such Type is determined by the applicable
governmental authority to violate any applicable law, rule or regulation of any
governmental authority or agency in any country, province, state, municipality
or other political subdivision (a "Geo-Political Entity") in which the
Subscriber Communicators is expected to be sold and/or operated (a "Regulatory
Violation"), Magellan shall (i) notify ORBCOMM of such Regulatory Violation,
(ii) cease sale of such Subscriber Communicator Type in the affected
Geo-Political Entity and (iii) promptly notify all registered owners in the
affected Geo-Political Entity of such Subscriber Communicator Type of such
Regulatory Violation and arrange for the prompt repair of all previously sold
Subscriber Communicators of such Type in the affected Geo-Political Entity so
that such Subscriber Communicator conforms to such law, rule or regulation.
(e) If at any time following Type Approval by ORBCOMM of any
Subscriber Communicator Type, any Subscriber Communicator is found, as a result
of internal quality assurance testing, as a result of tests performed on
returned Subscriber Communicators or otherwise, to not be performing in
accordance with the Applicable Benchmark Specifications (a "Specification
Violation"), the following provisions shall apply: (i) if from two (2) to five
(5) percent of any Lot of Subscriber Communicators has a Specification
Violation, Magellan shall notify ORBCOMM of such event and shall set forth in
detail the course of action and procedures, including manufacturing and quality
assurance changes, Magellan intends to undertake to reduce such Specification
Violations to less than two (2) percent of any Lot and (ii) if more than five
(5) percent of any Lot of Subscriber Communicators has a Specification
Violation, Magellan shall, in addition to providing the information required by
(i) above, cease manufacture and sale of such Subscriber Communicator of such
Type until such time as such Specification Violation is corrected and recall and
promptly repair all Subscriber Communicator of such Type to the extent required
by ORBCOMM.
6. TESTING REQUIREMENTS.
(a) Prior to Type Approval testing, ORBCOMM shall provide to
Magellan a Type Approval test plan for the Candidate Subscriber Communicators,
which test plan shall provide a mechanism for evaluating the Candidate
Subscriber Communicators against the Specifications. Thereafter, Magellan shall
submit to ORBCOMM: (i) a request for Type Approval testing, and (ii) Type
Approval test procedures for the Candidate Subscriber Communicators, which test
procedures shall provide a mechanism for evaluating the Candidate Subscriber
Communicators against the Benchmark Specifications. Such Type Approval test
procedures must be approved in writing by ORBCOMM prior to testing. ORBCOMM
shall have fifteen (15) business days to either approve or provide written
comments regarding the content of the Type Approval test procedures submitted by
Magellan. In the event ORBCOMM provides Magellan with written comments, Magellan
shall revise its Type Approval test procedures, taking into account such
comments, and resubmit such Type Approval test procedures to ORBCOMM for its
approval. ORBCOMM shall schedule the Type Approval test for the Candidate
Subscriber Communicator within the later of forty-five (45) days of receipt by
ORBCOMM of the request for Type Approval testing and the approval by ORBCOMM of
the Type Approval test procedures. Within sixty (60) days after completion of
Type Approval testing, Magellan shall provide a test report to ORBCOMM.
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(b) Magellan agrees to conduct testing of the Candidate Subscriber
Communicators in accordance with the ORBCOMM Type Approval test plan and its
ORBCOMM-approved Type Approval test procedures. ORBCOMM shall be entitled to
witness the Type Approval testing performed by Magellan at Magellan's designated
facilities. ORBCOMM reserves the right to withhold Type Approval for any
Candidate Subscriber Communicator Type failing to meet the minimum performance
requirements of the Type Approval tests and the Benchmark Specifications.
(c) Prior to production of the Subscriber Communicators, Magellan
shall provide to ORBCOMM, for its prior written approval, an ongoing quality
assurance test plan. The quality assurance test plan shall contain usual and
customary terms and conditions for the wireless communications equipment, taking
into account the intended purpose for which the Subscriber Communicator will be
used, and shall specify, at a minimum, appropriate manufacturing Lot sizes,
sample sizes, testing techniques, brand and model of test equipment and the
manner of calibrating such test equipment to a traceable, internationally
accepted standard. In addition, the quality assurance test plan shall test the
Subscriber Communicators comprehensively to ensure full compliance with the
Benchmark Specifications. The quality assurance test plan shall be used by
Magellan for the manufacture of Subscriber Communicators for the term of this
Agreement. Within thirty (30) days of receiving the quality assurance test plan,
ORBCOMM must either approve the plan or detail where the plan is deficient.
(d) Magellan agrees to allow ORBCOMM, during normal business hours
and without prior notice, to inspect and witness production testing of the
Subscriber Communicators. ORBCOMM shall be entitled to select any number of
Subscriber Communicators from any Lot to test for compliance with the terms and
conditions specified in this Agreement. Any such Subscriber Communicators shall
remain the property of Magellan and shall be returned to Magellan promptly after
testing.
7. COSTS.
Except as provided in Section 10 hereof, each party
shall bear its own costs and expenses in connection with the preparation,
negotiation and performance of its obligations under this Agreement, and neither
party shall be liable for the costs of the other.
8. NON-DISCLOSURE.
Each party acknowledges the execution of a Mutual
Non-Disclosure Agreement, dated __________, 1996 between ORBCOMM and Magellan.
Each party agrees to abide by the terms and conditions of such agreement;
provided, however, that Section II(a) shall be amended to change the phrase
"three years from the date of disclosure" appearing therein to "the later of (i)
ten (10) years from the date of disclosure and (ii) three years after the
termination or expiration of the Subscriber Communicator Manufacturing Agreement
dated as of July 31, 1996 between ORBCOMM Global, L.P. and Magellan
Corporation."
9. LABELING.
(a) All End User Subscriber Communicators shall have on the exterior
of the unit bear an appropriate "ORBCOMM" ▇▇▇▇. All OEM Subscriber Communicators
shall bear an appropriate "ORBCOMM" ▇▇▇▇ if a ▇▇▇▇▇▇▇▇ ▇▇▇▇ is displayed on the
exterior of the unit. During the term of this Agreement, ORBCOMM grants to
Magellan the right to use the "ORBCOMM" ▇▇▇▇ only for such purpose or for
purposes of manufacturing, selling or advertising such Subscriber Communicators.
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Magellan shall be required to obtain the advance written approval of the use of
the ORBCOMM ▇▇▇▇ unless such ▇▇▇▇ complies with the display and other
requirements set forth in the ORBCOMM Identity Manual, a copy of which is
attached hereto as Exhibit B. Any use of the word "ORBCOMM", or phrase "ORB"
combined with any other word or phrase, for a logo, trademark, service ▇▇▇▇ or
trade name shall require the prior written approval of ORBCOMM.
(b) All Subscriber Communicators shall have displayed on the
exterior of the unit any statements that may be required by the governmental
authorities or agencies of the countries in which the Subscriber Communicators
shall be sold and/or operated. Current FCC rules require that the following
statement be set forth on each Subscriber Communicator: "THIS DEVICE MAY NOT BE
OPERATED WHILE ON BOARD A CIVIL AIRCRAFT. IT MUST BE TURNED OFF AT ALL TIMES
WHILE ON BOARD SUCH AN AIRCRAFT".
(c) All Subscriber Communicators shall have displayed on the
exterior of the unit the Manufacturer's Serial Number assigned by Magellan and
reported to ORBCOMM as being associated with a specific Device Control Number.
Magellan shall require any OEM customer for whom it manufactures OEM Subscriber
Communicators to display the Magellan Manufacturer's Serial Number on the
exterior of the final end-product in which such OEM Subscriber Communicator is
incorporated.
(d) All Subscriber Communicators shall have displayed on the
exterior of the unit the legend "ORBCOMM Type Approved" together with the
ORBCOMM-assigned type approval number (collectively, the "ORBCOMM Type Approval
Legend"). Magellan shall require any OEM customer for whom it manufactures OEM
Subscriber Communicators to display the appropriate ORBCOMM Type Approval Legend
on the exterior of the final end-product in which such OEM Subscriber
Communicator is incorporated.
10. FEES AND ROYALTIES.
(a) There shall be no payments by ORBCOMM to Magellan for the
development, manufacture or delivery of any Subscriber Communicators not
specifically purchased by ORBCOMM. Magellan agrees to develop, manufacture and
deliver the Subscriber Communicators on the foregoing basis.
(b) The parties acknowledge that Orbital Sciences Corporation, on
behalf of Magellan, has previously paid to ORBCOMM a non-refundable fee in the
amount of $40,000, as payment for services and support to be provided by ORBCOMM
during the term of this Agreement, including, but not limited to, the loan and
maintenance of one Network Test Set.
(c) For all Subscriber Communicators sold that have been
manufactured by or on behalf of Magellan, Magellan shall pay or cause to be paid
to ORBCOMM a royalty equal to US$2.00 per Subscriber Communicator; provided that
Magellan shall be entitled to a credit against any future royalties owed by
Magellan hereunder in the event a Subscriber Communicator that is defective is
replaced, at Magellan's option, by another Subscriber Communicator and the
Device Control Number and associated Radio Identification Numbers for such
defective Subscriber Communicator is returned to ORBCOMM, which return occurs on
the reporting of the replacement of the defective Subscriber Communicator.
ORBCOMM shall invoice Magellan monthly for such royalty fee minus any applicable
credits as provided hereunder for all Device Control Numbers provided by ORBCOMM
to Magellan during the previous calendar month. Payment of such invoices is due
ninety (90) days from the receipt of the invoice.
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11. SUBSCRIBER COMMUNICATOR HARDWARE AND SOFTWARE.
(a) In accordance with the terms of this Agreement, ORBCOMM grants
Magellan the right to use or have used the Subscriber Communicator Software in
Subscriber Communicators Magellan offers for sale to ORBCOMM or any other buyer.
ORBCOMM grants Magellan the right to modify such software to enable Magellan's
specific hardware/software design to interface with the Network Software,
provided Magellan-initiated changes to the Subscriber Communicator Software do
not, in any way, change the functionality of such software; provided, that for
purposes of this Section 11(a), Magellan shall not be deemed to have changed the
functionality of such software if Magellan deletes portions of the Subscriber
Communicator Software and (i) it otherwise replaces such deleted functionality
or (ii) such deletion does not prevent the Candidate Subscriber Communicator
from receiving Type Approval. Magellan shall not sell, convey, or otherwise
transfer the Subscriber Communicator Software, in either its original or
modified form, to any other person or entity, except as specifically provided in
this Section 11(a).
(b)(i) Because the ORBCOMM System will be continuously evolving in
response to market demands and other factors, the ORBCOMM Software will be
subject to continuing development and configuration changes. ORBCOMM therefore
reserves the right to continue to make changes in the Specifications and/or the
ORBCOMM Software according to the following classifications:
(A) Type 1: Changes required to respond to,
or to avoid, a network anomaly that materially affects or would materially
effect, service within the ORBCOMM System;
(B) Type 2: Changes required to comply with
a regulation, statute, or other requirement imposed by a governmental authority
or standards organization having jurisdiction over all or a portion of the
ORBCOMM System;
(C) Type 3: Changes required to correct, or
implement work-arounds for, system anomalies, including but not limited to
hardware problems, software bugs, or other network operational problems; and
(D) Type 4: Changes not otherwise classified
as Type 1, Type 2, or Type 3.
(ii) Magellan acknowledges that changes to the ORBCOMM
System may be made after design conception but prior to Type Approval of a
Candidate Subscriber Communicator and Magellan shall be obligated to ensure that
Candidate Subscriber Communicators shall comply with the Benchmark
Specifications, and be compatible with the Benchmark Version of the ORBCOMM
Software.
(c)(i) In the event Type 1 or Type 2 changes to the Specifications,
the Network Software and/or Subscriber Communicator Software have been
determined by ORBCOMM to be required and ORBCOMM has determined that such
changes require or may require modification to the design of a Subscriber
Communicator or a Candidate Subscriber Communicator, ORBCOMM shall:
(A) provide Magellan with as much advance
notice as is reasonable given the circumstances, which notice shall include a
description of the functional changes to the Specifications, the Network
Software and/or Subscriber Communicator Software;
(B) to the extent required and as soon as
reasonably practicable, provide Magellan with new Subscriber Communicator
Software and/or a new version of the Network Test Set Software; and
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(C) to the extent required, as soon as
reasonably practical, provide a test report showing the current or new
Subscriber Communicator Software to be compatible with the current or new
Network Test Set Software, as the case may be.
(ii) Magellan shall, immediately upon receipt of such
notice, and to the extent that such notice directs Magellan to take such action:
(A) cease production of any Subscriber
Communicators that do not incorporate the revised Subscriber Communicator
Software or that do not comply with the revised Specifications;
(B) suspend shipment of any Subscriber
Communicators that do not incorporate the revised Subscriber Communicator
Software or that do not comply with the revised Specifications; and
(C) notify its customers of OEM Subscriber
Communicators that do not incorporate the revised Subscriber Communicator
Software or that do not comply with the revised Specifications, that they must
immediately suspend any shipment of such OEM products that contain non-compliant
OEM Subscriber Communicators.
(d)(i) In the event Type 3 changes to the Specifications, Network
Software and/or the Subscriber Communicator Software have been determined by
ORBCOMM to be required and ORBCOMM has determined that such changes require or
may require modification to the design of a Subscriber Communicator or a
Candidate Subscriber Communicator, ORBCOMM shall:
(A) at least ten (10) days before such
changes become effective, provide Magellan with notice thereof, which notice
shall include a description of the functional changes to the Specifications,
Network Software and/or Subscriber Communicator Software;
(B) to the extent required and as soon as
reasonably practical, provide Magellan with new Subscriber Communicator Software
and/or a new version of the Network Test Set Software; and
(C) to the extent required, as soon as
reasonably practical, provide a test report showing the current or new
Subscriber Communicator Software to be compatible with the current or new
Network Test Set Software, as the case may be.
(ii) To the extent that such notice directs Magellan to
take such action, Magellan shall, on a date or dates to be mutually agreed on,
provided that in no event shall such date be later than sixty (60) days from the
date of such notice:
(A) cease production of any Subscriber
Communicators that do not incorporate the revised Subscriber Communicator
Software or that do not comply with the revised Specifications;
(B) suspend shipment of any Subscriber
Communicators that do not incorporate the revised Subscriber Communicator
Software or that do not comply with the revised Specifications; and
(C) notify its customers of OEM Subscriber
Communicators that do not
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incorporate the revised Subscriber Communicator Software or that do not comply
with the revised Specifications, that they must immediately suspend any shipment
of such non-compliant OEM Subscriber Communicators.
(e)(i) In the event Type 4 changes to the Specifications, Network
Software and/or Subscriber Communicator Software have been determined by ORBCOMM
to be required and ORBCOMM has determined that such changes require or may
require modification to the design of a Subscriber Communicator or a Candidate
Subscriber Communicator, ORBCOMM shall:
(A) at least sixty (60) days before such
changes become effective, provide to Magellan notice of upcoming changes to the
Specifications, Network Software and/or Subscriber Communicator Software that
ORBCOMM believes will require Magellan to make corresponding changes to its
Subscriber Communicators; and
(B) not less that thirty (30) days after
such notice, provide to Magellan the following:
(x) a description of the
functional changes to the Specifications, Network Software and/or Subscriber
Communicator Software;
(y) to the extent required, new
Subscriber Communicator Software and/or a new Network Test Set Software version;
and
(z) to the extent required, a
test report showing the current or new Subscriber Communicator Software to be
compatible with the current or new Network Test Set Software, as the case may
be.
(ii)(A) Within thirty (30) days of receipt of the notice
specified in Section 11(e)(i)(A), Magellan shall notify ORBCOMM that it agrees
with the results of the test report provided by ORBCOMM pursuant to
11(e)(i)(B)(z) or provide ORBCOMM with a list of backward compatibility issues
that would result from using such new software.
(B) In the event Magellan does not provide
ORBCOMM with a list of such backward compatibility issues within such thirty
(30) day period or has accepted the results of the test report, ORBCOMM shall be
entitled to make the proposed Specification, Network Software and/or Subscriber
Communicator Software changes on the proposed date, and, subject to any
previously granted waivers under Section 11(f), Magellan shall be required to
implement such changes as are required into production Subscriber Communicators
immediately on the effective date of such change.
(C) If Magellan provides ORBCOMM with a list
of backward compatibility issues that would adversely effect the currently
manufactured Magellan Subscriber Communicators, ORBCOMM shall have ten (10)
business days to review such list. Thereafter, ORBCOMM and Magellan shall have
thirty (30) days to endeavor to develop a change that meets the intent of the
original proposed change but does not adversely effect the currently
manufactured Magellan Subscriber Communicator, provided that Magellan
acknowledges that ORBCOMM has entered into agreements with other subscriber
communicator manufacturers. If during such thirty (30) day period, the parties
are unable to develop a mutually agreeable change, ORBCOMM shall be entitled to
either implement its original proposed change or delay such implementation. If
ORBCOMM determines to implement its original proposed change, subject to any
previously granted waivers under Section 11(f), Magellan shall
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be required to implement such changes as are required into production Subscriber
Communicators immediately on the effective date of such change.
(f) Magellan may request a waiver from compliance with the
Specifications. If ORBCOMM in its sole discretion determines that the requested
waiver is acceptable, ORBCOMM may make an appropriate modification to the
Specifications or provide a waiver of the applicable Specification to Magellan
for a particular Subscriber Communicator Type.
(g) The Specifications and any modifications thereto, irrespective
of the source of such modifications, shall be owned solely by ORBCOMM and
Magellan shall retain no right or title to any portion of such modifications.
Notwithstanding the foregoing, ORBCOMM shall have no right to any intellectual
property developed by Magellan that implements any modification to the
Specifications proposed by Magellan.
12. WARRANTIES AND REPAIRS.
(a) Magellan shall provide to all Subscriber Communicator customers
and users, a warranty for the Subscriber Communicators. Magellan shall submit to
ORBCOMM a draft version of the warranty agreement. ORBCOMM reserves the right to
approve the warranty agreement to ensure compliance with the provisions of this
Agreement including this Section 12 prior to shipment of the first Subscriber
Communicator, which approval shall not be unreasonably withheld.
(b) At a minimum, the following warranties shall be given by
Magellan:
(i) Magellan warrants that for twelve (12) months
following activation thereof on the ORBCOMM System by a subscriber (the
"Warranty Period"), the Subscriber Communicators, used under normal operating
conditions and not subject to misuse or abuse, shall be free from defects in
material, workmanship and design and shall operate and conform to the
performance capabilities, specifications, functions and other descriptions and
standards applicable thereto as set forth in the Applicable Benchmark
Specifications;
(ii) In the event that defects or other failures to
comply with the applicable warranty are discovered during the Warranty Period,
Magellan shall be responsible for the prompt repair or replacement (at
Magellan's option) of the Subscriber Communicator and associated accessories
included with such Subscriber Communicator;
(iii) For Subscriber Communicators returned outside the
Warranty Period, Magellan shall provide the subscriber a written quotation of
the cost to repair the Subscriber Communicator and any associated accessories
included with the Subscriber Communicator. The subscriber shall be given the
opportunity to accept or decline the quotation and if the subscriber declines
the quotation to repair the Subscriber Communicator, Magellan shall return the
Subscriber Communicator to the subscriber. If the subscriber accepts the
quotation, Magellan shall repair such Subscriber Communicator and associated
accessories included with such Subscriber Communicator and return such repaired
Subscriber Communicator to the subscriber; and
(iv) For all repairs, Magellan shall be responsible for
ensuring that the repaired Subscriber Communicator meets all requirements and,
at a minimum, the Specifications that were in effect at the time such Subscriber
Communicator was manufactured, subject to normal wear and tear and appearance.
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(c) For all Subscriber Communicators purchased by ORBCOMM, whether
for resale or otherwise, the following additional provisions shall apply:
(i) In the event ORBCOMM resells any Subscriber
Communicator purchased by it from Magellan, ORBCOMM shall be entitled to pass
through any warranties it is entitled to under this Section 12;
(ii) In the event that defects or other failures to
comply with the applicable warranty are discovered during the Warranty Period,
Magellan shall repair or replace such equipment within ten (10) business days of
receipt thereof and shall pay for all costs of return shipment of such equipment
to the subscriber;
(iii) For Subscriber Communicators returned outside the
Warranty Period, Magellan shall provide the subscriber a written quotation of
the cost to repair the Subscriber Communicator within ten (10) business days of
receipt of the Subscriber Communicator. If the subscriber accepts the quotation,
Magellan shall return the repaired Subscriber Communicator and associated
accessories included with such Subscriber Communicator to the subscriber within
ten (10) business days of receipt of the acceptance of the quotation.
13. SEGREGATION OF DESIGN AND DEVELOPMENT ACTIVITIES.
Magellan agrees that it shall segregate the design and
development efforts under this Agreement with respect to subscriber
communicators for the ORBCOMM System and the persons who have access to ORBCOMM
proprietary information from the design and development efforts for other
two-way data communication devices intended for use with commercial low-Earth
orbit mobile satellite systems using radio frequencies below 1 GHz.
14. INTELLECTUAL PROPERTY.
Each party shall retain title to the tangible or
intangible property it develops with its own funds. No element of ORBCOMM
intellectual property, including, but not limited to, versions of the
Specifications or the ORBCOMM Software, in either draft or final form, may be
(a) used by Magellan except pursuant to this Agreement or (b) patented by
Magellan. In the event Magellan patents any technical aspect of the Subscriber
Communicator, and ORBCOMM determines, in its sole discretion, that such patented
intellectual property is essential to the manufacture of all Subscriber
Communicators in accordance with the then existing Specifications (the
"Essential Intellectual Property") or such Essential Intellectual Property
pertains to the design of another Subscriber Communicator of another
manufacturer, Magellan shall grant to ORBCOMM and its designees, on a
non-discriminatory basis and on commercially reasonable terms, a perpetual
world-wide license to use and have used any such Essential Intellectual Property
for use only with the ORBCOMM System; provided that in making the determination
regarding whether intellectual property is Essential Intellectual Property,
ORBCOMM shall exclude Magellan's inventions that are not necessary to the
operation of the ORBCOMM System but only improve the performance of the ORBCOMM
System.
15. INTELLECTUAL PROPERTY INDEMNIFICATION.
(a) Matters Subject to Indemnification.
(i) By Magellan. Magellan agrees to indemnify and hold
harmless ORBCOMM and to pay all reasonable out-of-pocket costs and expenses
(including, but not limited to, reasonable
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attorney's fees and court costs) incurred by ORBCOMM and any damages finally
awarded against ORBCOMM with respect to any allegation, claim, suit, or
proceeding based on the assertion that the Subscriber Communicators or any Type
thereof violates the intellectual property rights of a third party (including
but not limited to rights relating to patents, copyrights, know-how, mask works,
trademarks, or trade secrets). Magellan shall not, however, be obligated to
indemnify or hold harmless ORBCOMM with regard to:
(A) use of any Subscriber Communicator in
combination with other items unless Magellan sold, made, or specifically
recommended such a combination, or such Subscriber Communicator is commonly put
to use in such a combination in the normal course of its usage;
(B) failure by ORBCOMM to modify the
Specifications, the Benchmark Specifications, or the Applicable Benchmark
Specification (collectively "the ORBCOMM Specifications") in ways recommended by
Magellan, if (i) the modification is consistent with ORBCOMM's business and
technical objectives, (ii) the modification would not materially increase the
costs incurred by ORBCOMM or its customers, and (iii) the modification would
enable Magellan to avoid a claim of infringement;
(C) incorporation of a specific design
feature in any Subscriber Communicator at the insistence of ORBCOMM, provided
that the ORBCOMM Specifications shall not be deemed a "specific design feature"
for purposes of this Section 15(a)(i)(C); or
(D) an allegation, claim, suit, or
proceeding for which ORBCOMM is required to indemnify and hold harmless Magellan
under Section 15(a)(ii) below.
(ii) By ORBCOMM. ORBCOMM agrees to indemnify and hold
harmless Magellan and to pay all reasonable out-of-pocket costs and expenses
(including, but not limited to, reasonable attorney's fees and court costs)
incurred by Magellan and any damages finally awarded against Magellan with
respect to any allegation, claim, suit, or proceeding against Magellan primarily
and directly based on the express or implied assertion that the ORBCOMM
Specifications cannot be implemented without violating the intellectual property
rights of a third party (including but not limited to rights relating to
patents, copyrights, know-how, mask works, trademarks, or trade secrets), or the
assertion that Magellan's use of an authorized ORBCOMM trademark or service ▇▇▇▇
in connection with Subscriber Communicators as specified in Section 9 infringes
the rights of a third party. ORBCOMM shall not, however, be obligated to
indemnify or hold harmless Magellan with regard to:
(A) to the extent Magellan has the right to
so insist, changes made to the ORBCOMM Specifications at the insistence of
Magellan; or
(B) to the extent Magellan has the right to
object to modifications by ORBCOMM of the ORBCOMM Specifications, failure by
Magellan to permit ORBCOMM to make a modification requested by ORBCOMM, if (x)
the modification is consistent with Magellan's business and technical
objectives, (y) the modification would not materially increase the costs
incurred by Magellan or its customers, and (z) the modification would enable
ORBCOMM to avoid a claim that the ORBCOMM Specifications cannot be implemented
without infringing the intellectual property rights of a third party.
(b) Options in the Event of Claim of Infringement.
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(i) By Magellan. If the making, sale, or use of any
Subscriber Communicator becomes, or in the reasonable opinion of Magellan may
become the subject of any claim, suit, or proceeding, or if the manufacture or
sale of any Subscriber Communicator is enjoined, Magellan may, at its own option
and expense:
(A) obtain for its customers including
ORBCOMM the right to use such Subscriber Communicator;
(B) modify such Subscriber Communicator so
that it becomes noninfringing or replace such Subscriber Communicator with a
noninfringing Subscriber Communicator, in either case in such a manner as to
minimize the effect of such changes on ORBCOMM and to retain compliance with the
ORBCOMM Specifications, or
(C) temporarily suspend delivery of such
Subscriber Communicator while the infringement claim is being investigated.
If none of the above options is reasonably feasible,
Magellan may instead:
(D) cease to deliver such Subscriber
Communicator, and/or
(E) require ORBCOMM to return such
Subscriber Communicator in its possession or control to Magellan, and pay
ORBCOMM an amount equal to the price paid by ORBCOMM less depreciation (based on
a five-year life, with straight-line depreciation) up to the time that the
ORBCOMM ceases to use such Subscriber Communicator as a result of such claim.
(ii) By ORBCOMM. If a third party commences any
allegation, claim, suit, or proceeding based on the express or implied assertion
that the ORBCOMM Specifications, when implemented by Magellan will necessarily
violate the third party's intellectual property rights, or that use of an
authorized ORBCOMM trademark or service ▇▇▇▇ in connection with Subscriber
Communicators infringes the rights of a third party, or if in the reasonable
opinion of ORBCOMM a third party may initiate such an allegation, claim, suit,
or proceeding, ORBCOMM may, at its own option and expense:
(A) modify the ORBCOMM Specifications or the
relevant trademark or service ▇▇▇▇ to resolve any such concern; or
(B) require Magellan to cease the
manufacture and sale of Subscriber Communicators.
(c) Notice of infringement. Each party shall promptly notify the
other party of any allegation, claim, suit, or proceeding relating to a matter
subject to indemnification under this Section 15. Each party's obligation to
indemnify and hold the other party harmless under this Section 15 shall be
contingent on the indemnified party's provision of reasonably prompt notice to
the indemnifying party, provided that the obligation to indemnify shall be
modified only if and to the extent that the failure to provide reasonably prompt
notice to the indemnifying party materially prejudices the defenses of the
indemnifying party.
(d) Counsel. The indemnifying party shall defend any indemnified
matter through attorneys chosen and paid for by the indemnifying party.
(e) Limitations On Liability. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER
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PARTY FOR ANY LOST PROFITS OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER
PARTY, OR FOR ANY PUNITIVE DAMAGES AWARDED BECAUSE OF THE CONDUCT OF THE
INDEMNIFIED PARTY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS SECTION 15 FOR
MORE THAN TWO MILLION DOLLARS.
(f) Duty To Indemnify And Hold Harmless Related Entities And
Persons. The undertakings by Magellan and ORBCOMM in this Section 15 to
indemnify and hold one another harmless in the circumstances specified above
apply equally to the subsidiaries, parents, affiliates, officers, directors, and
employees of the indemnified party, and to the successors and assigns of those
entities or individuals.
(g) Entire Liability. This Section 15 sets forth the entire
liability of the parties to one another with respect to infringement of the
intellectual property rights of third parties.
16. LIMITATION OF LIABILITY.
(a) ORBCOMM HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM SYSTEM, ANY
ORBCOMM PRODUCTS AND SERVICES, THE NETWORK SOFTWARE, THE ORBCOMM SOFTWARE, THE
SUBSCRIBER COMMUNICATOR SOFTWARE, THE APPLICABLE BENCHMARK SPECIFICATIONS, THE
BENCHMARK SPECIFICATIONS OR THE SPECIFICATIONS. ORBCOMM EXPRESSLY DISCLAIMS AND
MAGELLAN HEREBY EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES,
OBLIGATIONS AND LIABILITIES OF ORBCOMM AND ITS AFFILIATES AND ALL RIGHTS, CLAIMS
AND REMEDIES OF MAGELLAN AGAINST ORBCOMM, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO, INCLUDING BUT NOT LIMITED TO: (i) ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE
OF TRADE, (iii) ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF
THE ORBCOMM SYSTEM, ANY ORBCOMM PRODUCTS OR SERVICES, THE NETWORK SOFTWARE, THE
ORBCOMM SOFTWARE, THE SUBSCRIBER COMMUNICATOR SOFTWARE, THE APPLICABLE BENCHMARK
SPECIFICATIONS, THE BENCHMARK SPECIFICATIONS OR THE SPECIFICATIONS, (iv) 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, NOT CONTAINED
IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM.
(b) Each of the parties acknowledges and understands that (i) the
ORBCOMM System may be operated under licenses granted by governmental
authorities or agencies ; (ii) one of the conditions to the use of such licenses
is non-interference with other users of the frequency bands covered by such
licenses; (iii) at any time and for any reason, such governmental authorities or
agencies may revoke, terminate or render unusable any or all of the licenses
granted to ORBCOMM for use in connection with the ORBCOMM System; and (iv) the
ORBCOMM System is an untested, new business venture involving a new satellite
system design that 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 16(b)
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SHALL OCCUR, NEITHER ORBCOMM NOR MAGELLAN 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.
(c) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY HAVE ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
TO OR AGAINST THE OTHER UNDER THIS AGREEMENT FOR LOSS OF USE, REVENUE OR PROFIT
OR FOR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
17. TERMINATION.
(a) Either party has the right to terminate this Agreement upon the
occurrence of any of the following events (an "Event of Default"):
(i) Breach. If the other party breaches any obligation
hereunder, which breach has not been cured within thirty (30) calendar days
after receipt of notice of such breach; or
(ii) Acts of Insolvency. If the other party becomes
insolvent, makes a general assignment for the benefit of creditors, files a
voluntary, or becomes subject to any proceedings under any bankruptcy or
insolvency law, whether domestic or foreign, and such proceedings (if
involuntary) are not dismissed within sixty (60) days after initiation, or has
wound up or liquidated, voluntarily or otherwise.
(b) Remedies. Upon the occurrence of an Event of Default, the
non-defaulting party shall be entitled to terminate this Agreement and shall
have such other rights and remedies granted to such party by law or equity,
subject to the terms and conditions of this Agreement.
18. ASSIGNMENT.
This Agreement shall be binding upon the parties and
their permitted successors and assigns. Neither the interest of either party to
this Agreement nor any other right or obligation hereunder may 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; provided, however, that ORBCOMM may assign this Agreement and its
rights and obligations hereunder to any parent, subsidiary or affiliate of
ORBCOMM, to any person acquiring all or substantially all of ORBCOMM's assets
whether by purchase, merger, acquisition of shares or any other means, or to a
successor in interest to the line of business within ORBCOMM that will perform
this Agreement.
19. DISPUTES.
(a) Any controversy or claim arising out of or relating to this
Agreement or the breach hereof 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, at
least one of whom shall be expert in the manufacture of wireless communication
equipment. The arbitrators' award shall include an allocation of arbitration
fees, expenses and compensation, and may include an award to the prevailing
party of its attorneys' fees, costs and expenses in connection with the
arbitration. A judgment
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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, 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.
(b) Notwithstanding the existence of any such disagreement of
dispute and pending resolution thereof, each of ORBCOMM and Magellan shall
proceed diligently with the performance of this Agreement, including all
performance relating to the disputed matter.
20. 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.
21. NOTICES AND REQUESTS.
All notices and other communications hereunder shall be
in writing and shall be deemed given on receipt if delivered personally or
by facsimile (answer back received), one (1) business day after being sent by
reputable overnight courier (signature required on receipt), 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):
(a) If to ORBCOMM:
ORBCOMM Global, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President, Engineering and Operations
Facsimile Number: ▇▇.▇▇▇.▇▇▇.▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President and General Counsel
at the above address and to the following facsimile
number: ▇▇.▇▇▇.▇▇▇.▇▇▇▇
Technical communications and day-to-day correspondence
may be sent to the designated ORBCOMM Product Manager at the above address.
(b) If to Magellan:
Magellan Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇, Project Manager,
ORBCOMM Subscriber Communicator
Facsimile Number: ▇▇.▇▇▇.▇▇▇.▇▇▇▇
22. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together
shall constitute one and the same agreement.
23. WAIVER.
It is understood and agreed that no failure or delay by
either ORBCOMM or Magellan 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 an
authorized representative of both parties.
24. TITLES AND HEADINGS.
Titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
25. ENTIRE AGREEMENT.
This Agreement and all attachments (which are hereby
made part of this Agreement) contain the entire understanding between Magellan
and ORBCOMM and supersede all prior written and oral understandings relating to
the subject hereof. Any modification or amendment of this Agreement must be in
writing and signed by an authorized representative of both parties.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and do each hereby warrant and represent that their
respective signatory, whose signature appears below, has been duly authorized by
all necessary and appropriate corporate action, to execute this Agreement.
ORBCOMM GLOBAL, L.P. MAGELLAN CORPORATION
By:______________________ By:_______________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: President
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