Exhibit 10.1
Mobile Satellite Ventures LP/Cadence LLC
SERVICES AGREEMENT
THIS AGREEMENT, made as of May 26, 2006, by and between Mobile Satellite
Ventures LP (hereinafter called "MSV"), a Delaware limited partnership with
offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, U.S.A., and
Cadence LLC, with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
(hereinafter called "CADENCE").
WHEREAS, MSV desires to retain CADENCE to provide services as described in this
Agreement (the "Services"); and
WHEREAS, CADENCE has expertise and experience in the areas in which it is
retained to perform the Services and represents that it is capable of
accomplishing such Services, and desires to perform such Services for MSV;
Now therefore, in consideration of the mutual covenants contained herein, and
for other good and valuable consideration, the sufficiency of which is hereby
acknowledged by the parties, it is agreed as follows:
Section 1 - Services
(a) Services:
(1) CADENCE shall perform the Services described in the Statement of Work
attached to this Agreement as Annex A, which is hereby incorporated in and made
a part of this Agreement. Additional or changed statements of work may be
entered into from time to time by MSV and CADENCE, provided that such additions
or changes shall be in writing. CADENCE shall perform the Services in
coordination with the person designated in Annex A or such other persons as may
be designated by MSV from time to time. MSV reserves the right to approve any
personnel assigned by CADENCE to perform Services under this Agreement.
(2) CADENCE agrees to comply at all times with all security procedures in
effect at MSV's premises and externally for materials and information belonging
to MSV or for which MSV is responsible.
(b) Changes: MSV reserves the right to change, including increasing or reducing,
or terminate the Services to be performed under this Agreement at any time. If
the services are changed, the charges shown in Annex A will be revised as
appropriate on a pro rata basis. Changes will be as mutually agreed upon by MSV
and CADENCE.
(c) Time of the essence: CADENCE understands that prompt performance of all
Service hereunder is required by MSV in order for MSV to meet its commitments
and that time is of the essence.
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Section 2 - No Conflict of Interest
CADENCE represents and warrants to MSV that it is now under no contract or
obligation, nor will CADENCE execute a contract or agreement or assume an
obligation during the term of this Agreement that will in any manner interfere
or represent a conflict of interest with the performance of Services by CADENCE
or the performance by CADENCE of its other duties under the terms and conditions
of this Agreement.
Section 3 - Term and Termination
(a) Term: The term of services to be performed under this Agreement shall be as
set forth in the Statement of Work attached as Annex A, subject to the
provisions of paragraph (b) of this section 3. At the end of the stated term,
this Agreement shall terminate without any requirement of notice unless extended
in writing by mutual agreement of the parties, subject to the provisions of
section 9 of this Agreement. This Agreement shall apply to Services performed by
CADENCE for MSV pursuant to additional Statements of Work agreed to in writing
by the parties.
(b) Termination:
(1) At will: MSV may terminate this Agreement at any time upon ten (10)
days' written notice to CADENCE and may reduce or terminate the Services to be
performed during the time period between the notice date and effective date of
termination, as provided in section 1(b) of this Agreement. In the event of such
termination, MSV shall pay CADENCE for all work performed by CADENCE to the date
of termination and accepted by MSV and for allowable expenses incurred to the
date of termination.
(2) Default: MSV may terminate this Agreement in the event of a breach by
CADENCE of any provision of this Agreement, or if CADENCE becomes the subject of
voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation
proceedings, makes an assignment for the benefit of creditors or admits in
writing its failure to pay debts as they become due. In the event of a
termination for default, MSV shall be entitled to all direct damages incurred by
it as a result of the default, as well as to any other rights and remedies
available to MSV at law or in equity.
(c) After termination: Upon termination of this Agreement, for any cause,
CADENCE shall without additional cost to MSV, return to MSV in an orderly and
expeditious manner, all data, records, documentation, and other property
belonging to MSV.
Section 4 - Charges and Payment
(a) In consideration of the performance of Services under this Agreement, MSV
agrees to retain CADENCE with at *** deposit or ******* and shall then pay
CADENCE at a rate of **** per hour on a time and materials Not-To-Exceed ("NTE")
basis.
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(b) In addition to the rates shown in Annex A, MSV shall reimburse CADENCE for
actual out-of-pocket expenses incurred in the performance of this Agreement. All
such expenses shall be paid in accordance with MSV's then-current policy
regarding travel and expenses.
(c) CADENCE shall invoice MSV every two weeks every two weeks and MSV shall pay
CADENCE's invoices within thirty (30) days of receipt. Invoices must include a
breakdown of the hours expended by project task and receipts for all
out-of-pocket expenses.
(d) MSV will apply a portion of the *********** prepaid deposit to each invoice
received during performance of this agreement (the "Credit Amount"). However, in
no event will the Credit Amount exceed more than *** of any individual invoice
unless it is the final invoice. All prepaid deposit fees remaining at the end of
the project will be applied to the final invoice.
Section 5 - Warranty
CADENCE warrants that all Services performed and/or products delivered, as the
case may be, under this Agreement will comply with the applicable statement of
work or specification and will be performed in accordance with the best industry
practices and standards. CADENCE will reperform any Service or repair or
replace, at MSV's direction, any product or deliverable which does not meet this
warranty. Specific warranty periods and remedies for Services or products which
do not meet the warranty shall be as set forth in the applicable Statement of
Work.
Section 6 - Ownership of Work Product; Disclosure
(a) Ownership: CADENCE acknowledges that it is hired to invent for MSV, that any
works created which qualify as works made for hire under applicable copyright
law shall be considered works made for hire, and that MSV shall own all right,
title and interest in and to all proprietary rights in all work product or other
materials produced by CADENCE in the performance of this Agreement. If a work
does not qualify as a work made for hire under applicable copyright law, or if
MSV does not own all right, title, and interest to other material, CADENCE
hereby grants, conveys, assigns and transfers to MSV any and all proprietary
rights in and to such works and materials, including but not limited to
copyrights, patents, trademarks, and trade secrets. During performance of this
Agreement, CADENCE shall assure that all of its employees, and/or subcontractors
who are involved in the performance of work under this Agreement have executed
agreements with CADENCE providing that all work performed by such employees,
CADENCE's, and/or subcontractors relative to the work performed hereunder is
subject to the provisions of this section 6.
(b) Licenses to certain materials: If the performance of Services under this
Agreement requires the provision or use of any proprietary computer programs or
other materials of CADENCE or of CADENCE's suppliers or subcontractors, CADENCE
shall specifically identify such programs or materials in writing to MSV and
shall grant to or obtain for MSV a perpetual, nonexclusive, license or
sublicense to use such programs or materials.
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(1) Licenses granted or obtained pursuant to this paragraph (b) shall be
provided at no additional cost to MSV and shall include where necessary in MSV's
sole judgment the right for MSV's customers, resellers, agents, employees, or
others to use the programs or materials.
(2) CADENCE represents and warrants that it has full right, power, and
authority to use and disclose to MSV the programs and materials and to grant or
obtain the licenses provided for under this paragraph (b). At the request of
MSV, CADENCE shall provide MSV with all documentation supporting this warranty,
including but not limited to copies of licenses granted by CADENCE's suppliers
or subcontractors.
(c) Disclosure: (1) CADENCE agrees to disclose to MSV all ideas, works, and
inventions, whether or not subject to patent or copyright protection, made,
conceived, or actually or constructively reduced to practice by CADENCE during
the period of this Agreement, whether solely or jointly with others, which refer
to or result from the Services performed by CADENCE pursuant to this Agreement
or are obtained by CADENCE from any information in discussions and meetings with
employees of MSV or with its subsidiaries, affiliated or related companies, or
with any of MSV's current or prospective customers.
(2) Upon completion of Services performed under this Agreement, or as
otherwise specified in an applicable Statement of Work, CADENCE shall deliver to
MSV all copies of all software and of all other documents of any kind produced
by CADENCE in the performance of Services under this Agreement.
(d) Assistance to MSV: CADENCE further hereby assigns and agrees to execute any
and all documents necessary to assign said ideas and inventions to MSV at MSV's
expense and to assist MSV in every proper way to protect such ideas and
inventions, including but not limited to signing patent or copyright
applications, oaths, and assignments in favor of MSV relating to such ideas and
inventions, both in the United States and in any and all foreign countries.
Section 7 - Nondisclosure Agreement
The Nondisclosure Agreement between the parties, dated contemporaneously with
this Services Agreement, and set forth in Annex B, is hereby made a part of this
Agreement.
Section 8 - Indemnification and Insurance
(a) CADENCE shall indemnify and hold MSV harmless from and against all loss,
liability, damage and expense related to claims arising from --
(1) Personal injury and damage to personal property caused by the acts or
omissions of CADENCE; or
(2) Claims, brought against MSV by a third party, that work performed by
CADENCE and/or materials supplied by CADENCE under this Agreement infringes upon
any patent, copyright, trade secret, or other intellectual property right of a
third person.
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(b) CADENCE shall carry liability insurance, including but not limited to
Workers' Compensation as required by law, business automobile insurance, and
general liability insurance. CADENCE will provide MSV upon request with
certificates of insurance.
Section 9 - Survival of Terms and Equitable Relief
(a) Survival of terms: The provisions that by their nature, are intended to
survive the expiration or termination of this Agreement, including but not
limited to those contained in sections 5, 6, and 7 of this Agreement, and all of
the provisions in the Nondisclosure Agreement, shall survive the expiration or
termination of this Agreement or any amendments or extensions hereof.
(b) Equitable relief: CADENCE agrees that MSV's remedy at law for any breach or
threatened breach by CADENCE of the provisions of section 6 or of the
Nondisclosure Agreement, would be inadequate and therefore agrees that MSV shall
be entitled to injunctive relief in the event of any such breach or threatened
breach.
Section 10 - Status of Parties
CADENCE, and its employees who perform Services under this Agreement, shall be
deemed at all times to be an independent contractor and, as such, during the
term of this Agreement will not be eligible for any of MSV's or any affiliated
company's employee benefits, including but not limited to Group Insurance,
separation or vacation pay, or participation in any pension or stock option
plan, and MSV shall not make deductions or withhold funds from compensation paid
hereunder for the purpose of Social Security, Federal, State, or local income
tax. Nothing contained in this Agreement shall be construed as creating the
relation of employer and employee between the parties during the term of this
Agreement. CADENCE shall not act or be authorized to act as MSV's agent in any
matter or make any representations on behalf of MSV except as expressly
authorized in writing by MSV.
Section 11 - Force Majeure
Neither party shall be in default or otherwise liable for any delay in or
failure of its performance under this Agreement where such delay or failure
arises by reason of any Act of God, or of any government or any governmental
body, acts of the common enemy, the elements, strikes or labor disputes, or
other similar or dissimilar cause beyond the control of such party, provided,
however, that the delay or failure in performance could not have reasonably been
foreseen or provided against; and provided further that each party exercises
such diligence as the circumstances may require.
Section 12 - Miscellaneous
(a) Notices: (1) All notices which are required or permitted to be given under
this Agreement shall be sent postage prepaid, by certified mail, by courier such
as United Parcel Service, or by facsimile, to the addresses set forth below.
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If to MSV:
Mobile Satellite Ventures LP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President and COO
Facsimile: 703/390-2770
With a copy to:
Mobile Satellite Ventures LP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Legal
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Invoices shall be sent to the above address, marked
"ATTN: Accounts Payable."
If to CADENCE:
Cadence LLC
▇▇▇▇ ▇ ▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇, President
Facsimile: (413) 502 - 9811
(2) The parties may, by written notice, designate other addresses and/or
facsimile numbers for receipt of notices under this Agreement. Notwithstanding
any other provision of this paragraph (a), if MSV's address changes, this
paragraph shall be deemed amended to reflect such address change.
(b) Assignment: This Agreement shall be binding upon and shall inure to the
benefit of MSV and its successors and assigns. For the purposes of this
Agreement, "successors and assigns" of MSV shall include any person, firm,
corporation, or other entity which at any time, whether by merger, acquisition,
purchase, or otherwise, shall acquire all or substantially all of the assets of
MSV. This Agreement may not be assigned by CADENCE.
(c) Applicable law: This Agreement shall be subject to the laws of the
Commonwealth of Virginia, without giving effect to the principles of conflict of
laws thereof. CADENCE agrees that any and all causes of action, whether or not
arising under this agreement, between the parties shall be brought exclusively
in the Circuit Court of Fairfax County, Virginia, or in the U.S. District Court
for the Eastern District of Virginia.
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(d) Compliance with U.S. Export Law. The Parties acknowledge that any products,
software, and technical information (including, but not limited to, services and
training) provided under this Non-Disclosure Agreement may be subject to U.S.
export laws and regulations, which may restrict the use or transfer of such
products, software, and technical information. Each Party agrees that any use or
transfer of the products, software, or technical information (even if
incorporated into other products) must be in compliance with U.S. export
regulations. If requested by a Party, each Party also agrees to sign written
assurances and other export-related documents as may be reasonably required for
the other Party to comply with U.S. export regulations.
(e) Entire agreement: This Agreement is in lieu of and supersedes all prior
agreements, representations, negotiations, or other understandings of the
parties with respect to the subject matter hereof. It may not be amended or
altered except in a writing signed by the authorized representatives of the
parties.
(f) Waiver and severability: (1) The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of the
same or any other breach by either of the parties to this Agreement, whether
prior or subsequent.
(2) If any term or provision of this Agreement is determined by a court
of competent jurisdiction to be illegal, invalid, or unenforceable, the
legality, validity, or enforceability of the remainder of this Agreement shall
not thereby be affected, and this Agreement shall be deemed to be amended to the
extent necessary to delete such provision.
(g) Headings: The section, paragraph, and subparagraph headings contained in
this Agreement are for reference purposes only, and shall not in any way affect
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF THE PARTIES HAVE ENTERED INTO THIS SERVICES AGREEMENT, AS OF
THE DATE FIRST SET FORTH ABOVE.
MOBILE SATELLITE VENTURES LP CADENCE LLC
By its General Partner, MOBILE SATELLITE VENTURES GP
INC.
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Signature Signature
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Title Title
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Name Name
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Date Date
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Employer Identification Number
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Amendment #1, although referred to in subsequent Amendments, was changed from an
Amendment to a Statement of Work.
AMENDMENT NO. 2
to
MSVLP/CADENCELLC
SERVICES AGREEMENT DATED
October 11, 2007
This Amendment No. 2 ("this Amendment") shall take effect on October 11, 2007
(the "Effective Date") and is made by and between Mobile Satellite Ventures LP
("MSV"), and CADENCE LLC ("CADENCE LLC"). For purposes of this Amendment,
Customer and CADENCE LLC may each be referred to individually herein as, a
"Party" and collectively herein as, the "Parties".
WHEREAS, MSV and CADENCE LLC entered into that certain Services Agreement dated
May 26th, 2006 for engineering support services provided to MSV by CADENCE LLC
(the "Agreement") as Amended by Amendment No. 1 on January 1st, 2007,and
WHEREAS, the Parties now wish to Issue this Amendment No. 2 to capture the
additional services provided by CADENCE LLC to MSV as were originally defined in
separate Authorization to Proceed ("ATP") letters dated August 10, 2007 (ATP#1)
and October 11, 2007 (ATP#2) respectively. The services provided by Cadence LLC
are summarized in the ATP letters attached as Annex A and Annex B to this
Amendment.
THEREFORE, for valuable consideration, the sufficiency of which is hereby agreed
by the Parties, the Parties agree as follows.
Unless otherwise defined herein and/or except where the context otherwise
requires, any capitalized term used in this Amendment not otherwise defined
herein shall have the meaning ascribed to such term in the Agreement.
1. CADENCE LLC shall or has performed the work described in the ATP's attached
to this Amendment as Annex A and Annex B which is hereby incorporated in and
made part of the Agreement. The work shall be performed, and Customer shall pay
for the work, in accordance with the terms and conditions of the Agreement
unless otherwise modified by this Amendment.
2. MSV shall pay CADENCE LLC at the contracted hourly rates.
3. CADENCE LLC shall submit invoices bi-weekly for services provided in the
prior two week period. Invoices shall include a statement of work accomplished
segregated by hours for each labor classification outlined in the statement of
work. All travel and living expenses are included in the per hour rate. MSV will
pay invoices within 30 days of invoice date.
4. Other
Subject to this Amendment and insofar as is necessary to give effect to
this Amendment, all terms and conditions contained in the Agreement shall
remain in full force and effect. In the event of a discrepancy between the
terms and conditions contained in this Amendment and those contained in the
Agreement, the terms and conditions contained in this Amendment shall
prevail. The Parties further agree that in the event of ambiguity or
uncertainty, the terms and conditions contained in the Agreement shall be
interpreted in accordance with the principles underlying the terms and
conditions contained in this Amendment.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by and
through their duly authorized representatives.
MOBILE SATELLITE VENTURES LP by its CADENCE LLC
General Partner, MOBILE SATELLITE VENTURES GP INC.
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Signature Signature
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Title Title
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Name Name
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Date Date
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AMENDMENT NO. 3
To
MSVLP/CADENCE
SERVICES AGREEMENT DATED
November 20th, 2007
This Amendment No. 3 ("this Amendment") shall take effect on November 20th, 2007
(the "Effective Date") and is made by and between Mobile Satellite Ventures LP
(hereinafter, "MSV"), and CADENCE II, LLC dba Cadence, a successor in interest
to Cadence, LLC (hereinafter, "CADENCE"). For purposes of this Amendment,
Customer and CADENCE may each be referred to individually herein as, a "Party"
and collectively herein as, the "Parties".
WHEREAS, MSV and CADENCE entered into that certain Services Agreement dated May
26th, 2006 for engineering support services provided to MSV by CADENCE (the
"Agreement") as amended by Amendment No. 1 dated January 1st, 2007 and Amendment
No. 2 dated October 31, 2007; and
WHEREAS, the Parties now wish to add additional services to be provided by
CADENCE as defined in the attached statement of work outlining the Integrated
Service Delivery Framework ("ISDF") program and associated development that will
be undertaken by CADENCE under the direction of MSV.
THEREFORE, for valuable consideration, the sufficiency of which is hereby agreed
by the Parties, the Parties agree as follows.
Unless otherwise defined herein and/or except where the context otherwise
requires, any capitalized term used in this Amendment not otherwise defined
herein shall have the meaning ascribed to such term in the Agreement.
1. CADENCE shall perform the ISDF work described in the SOW attached to this
Amendment as Annex A which is hereby incorporated in and made part of the
Agreement. The work shall be performed, and Customer shall pay for the work, in
accordance with the terms and conditions of the Agreement unless otherwise
modified by this Amendment.
2. Section 3 of the Agreement, "Termination", is modified as follows:
Section 3.b (1): Replace with the following: At will: MSV may terminate this
Agreement at any time upon thirty (30) days" written notice to CADENCE and may
reduce or terminate the Services to be performed during the time period between
the notice date and effective date of termination, as provided in section 1(b)
of this Agreement. In the event of such termination, MSV shall pay CADENCE for
all allowable work performed by CADENCE to the date of termination for allowable
expenses incurred to the date of termination. In addition, CADENCE shall retain
any remaining portion of the Prepaid Deposit as discussed below.
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Section 3.b (2): Replace with the following: Either Party may terminate this
Agreement by providing written notice thereof to the other Party in the event of
(i) a breach by the other party of any provision of this Agreement that remains
uncured for a period of thirty (30) days following receipt of written notice
thereof, or (ii) either party becomes the subject of voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation proceedings, makes an
assignment for the benefit of creditors or admits in writing its failure to pay
debts as they become due. In the event of a termination for default, either
party shall be entitled to all direct damages incurred by it as a result of the
default, as well as to any other rights and remedies available to either party
at law or in equity.
Section 3.c: Replace with the following: Upon termination of this Agreement, for
any cause, either party shall without additional cost to the other party, return
to either party in an orderly and expeditious manner, all data, records,
documentation, and other property belonging to the other party.
3. Section 4 of the Agreement, "Charges and Payments", is modified as follows:
Section 4(a): Replace with the following: "In consideration of the upfront costs
associated with the establishment of a development team capable of providing
these services and other facilities related start-up costs, MSV agrees to
provide a pre-payment of $********* ("Prepaid Deposit") that will be used by
CADENCE to cover these upfront costs. The Prepaid Deposit will then be applied
as payment to each invoice received from CADENCE under this Amendment No. 3 in
an amount equal to **% of each invoice but in no event less than $******* per
month.
The Prepaid Deposit fees may be used by MSV to pay the last invoice of the work
defined in this and future SOW's but cannot be used to pay for the yet to be
negotiated transition assistance fees described below. Should MSV terminate the
Agreement pursuant to Section 3.b(1) prior to fully liquidating the total
Prepaid Deposit, the remaining amount of the Prepaid Deposit will be considered
a Termination Fee and retained in full by CADENCE.
MSV will manage the ISDF project through a series of statements of work, the
first of which is represented by Annex A. Future statements of work will be
jointly developed and submitted for MSV's approval as described in the Process
Management, Reporting and Communications Plan contained in Section 2 of the SOW.
Approved SOW's will be incorporated into the overall project scope.
MSV shall pay CADENCE at the hourly rates provided in Section 5 of Annex A and
CADENCE shall perform the work and meet all deliverables outlined in the
attached SOW. Rates include all reasonable travel and living expenses incurred
by Cadence LLC to support the program in Reston and at the Denver, Colorado
development center, which, for the avoidance of doubt, shall be the sole
responsibility of CADENCE.
Section 4.d: Deleted.
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4. Section 6 of the Agreement, "Ownership of Work Product; Disclosure", is
deleted and replaced with the following provision:
(a) Ownership:
(1) Definitions:
(i) "Intellectual Property" or "IP" means all ideas, information,
concepts, discoveries, inventions, methods or processes, specifications,
technology, software and other works of authorship, improvements and know-how
and all associated rights in and to any patents, patent applications (including
any reissues, continuations, continuations-in-part, revisions, extensions and
reexaminations thereof), copyrights and trade secrets;
(ii) ***********************************************;
(iii) ***********************************************
(2) Ownership:
(i) ***********************************************
(ii) ***********************************************
(iii) ***********************************************
(b) Licenses to certain third party materials:
(i) CADENCE hereby warrants that any licenses or materials required to
operate the deliverables as contemplated herein will be immediately disclosed to
MSV. If CADENCE has the right to provide such licenses or materials to MSV at no
additional cost to CADENCE, then CADENCE shall do so. Otherwise, CADENCE will
provide assistance to ensure licenses can be acquired directly from any 3rd
parties by MSV.
(ii) Assistance to CADENCE: MSV shall provide assistance to CADENCE to
ensure that any licenses for the purposes herein and acquired by MSV will allow
for CADENCE to perform contracted work on MSV's behalf.
(2) CADENCE represents and warrants that it has full right, power, and authority
to use and disclose to MSV the programs and materials provided for under this
paragraph (b).
(3) Assistance to MSV: CADENCE further hereby assigns and agrees to execute any
and all documents necessary to assign, if applicable, Foreground IP to MSV at
MSV's expense and to assist MSV in every proper way to protect such Foreground
IP, including but not limited to signing patent applications, oaths, and
assignments in favor of MSV relating to patents, both in the United States and
in any foreign country.
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(c) Disclosure:
(1) CADENCE agrees to promptly and periodically inform MSV in writing of the
status of all Foreground IP made, conceived, or actually or constructively
reduced to practice by CADENCE pursuant to this Agreement, whether solely or
jointly with others.
(2) Upon completion thereof, or as otherwise specified in an applicable
Statement of Work, CADENCE shall deliver to MSV all copies of all software and
of all other documents of any kind produced by CADENCE in the performance of
Services under this Agreement.
5. Section 8: "Indemnifications and Insurance"
Section 8.a is deleted and replaced with the following provision:
(a) The Parties shall indemnify and hold one another harmless from and against
all loss, liability, damage and expense related to claims arising from:
(1) Personal injury and damage to personal property caused by the
intentional or material acts or omissions of the other Party; or
(2) Claims, allegations, or requests for royalties, brought against either
Party by a third party, that work performed by either Party for the other and/or
materials or deliverables supplied by either party to the other under this
Agreement infringes upon any patent, copyright, trade secret, or other
intellectual property right of a third person.
Add the following sub-paragraph (g): With the exception of willful misconduct or
gross negligence, in no event shall either party be liable for any indirect,
incidental, special, or consequential damages, or damages for loss of profits,
revenue, data, or use, incurred by either party or any third party, whether in
an action in contract or tort, even if the other party or any other person has
been advised of the possibility of such damages.
6. Press Releases-Marketing Collaboration: At any time after the Effective Date,
(i) either Party may request the other Party's approval, such approval not to be
unreasonably withheld, to use the other Party's name as a reference, including
without limitation, use of the other Party's name in press releases and on other
promotional materials: (ii) CADENCE may request MSV's approval, such approval
not to be unreasonably withheld to (a) invite MSV representative to act as a
spokesperson for CADENCE at trade events or other forums and (b) to include
MSV's logo on the CADENCE website together with a statement of the relationship
of the Parties.
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7. Other
Subject to this Amendment and insofar as is necessary to give effect to this
Amendment, all terms and conditions contained in the Agreement shall remain in
full force and effect. In the event of a discrepancy between the terms and
conditions contained in this Amendment and those contained in the Agreement, the
terms and conditions contained in this Amendment shall prevail. The Parties
further agree that in the event of ambiguity or uncertainty, the terms and
conditions contained in the Agreement shall be interpreted in accordance with
the principles underlying the terms and conditions contained in this Amendment.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by and
through their duly authorized representatives.
MOBILE SATELLITE VENTURES LP by its CADENCE II, LLC
General Partner, MOBILE SATELLITE VENTURES GP INC.
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Signature Signature
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Title Title
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Name Name
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Date Date
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AMENDMENT NO. 4
To
MSVLP/CADENCE
SERVICES AGREEMENT DATED
November 20th, 2007
This Amendment No. 4 ("this Amendment") shall take effect on April 01, 2008 (the
"Effective Date") and is made by and between Mobile Satellite Ventures LP
(hereinafter, "MSV"), and CADENCE II, LLC dba Cadence, a successor in interest
to Cadence, LLC (hereinafter, "CADENCE"). For purposes of this Amendment,
Customer and CADENCE may each be referred to individually herein as, a "Party"
and collectively herein as, the "Parties".
WHEREAS, MSV and CADENCE entered into that certain Services Agreement dated May
26th, 2006 for engineering support services provided to MSV by CADENCE (the
"Agreement") as amended by Amendment No. 1 dated January 1st, 2007; Amendment
No. 2 dated October 31, 2007; Amendment No. 3 dated December 10, 2007 and
WHEREAS, the Parties now wish to add additional services to be provided by
CADENCE as defined in the attached statement of work outlining the Integrated
Service Delivery Framework ("ISDF") program and associated development for the
period April 01, 2008 thru September 30, 2008 which will be undertaken by
CADENCE under the direction of MSV.
THEREFORE, for valuable consideration, the sufficiency of which is hereby agreed
by the Parties, the Parties agree as follows.
Unless otherwise defined herein and/or except where the context otherwise
requires, any capitalized term used in this Amendment not otherwise defined
herein shall have the meaning ascribed to such term in the Agreement.
1. CADENCE shall perform the ISDF work described in the Annex A and Annex B
SOWs attached to this Amendment which are hereby incorporated in and made
part of the Agreement. The work shall be performed, and Customer shall pay
for the work, in accordance with the terms and conditions of the Agreement
unless otherwise modified by this Amendment.
2. Other
Subject to this Amendment and insofar as is necessary to give effect to this
Amendment, all terms and conditions contained in the Agreement shall remain in
full force and effect. In the event of a discrepancy between the terms and
conditions contained in this Amendment and those contained in the Agreement, the
terms and conditions contained in this Amendment shall prevail. The Parties
further agree that in the event of ambiguity or uncertainty, the terms and
conditions contained in the Agreement shall be interpreted in accordance with
the principles underlying the terms and conditions contained in this Amendment.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by and
through their duly authorized representatives.
MOBILE SATELLITE VENTURES LP by its CADENCE II, LLC
General Partner, MOBILE SATELLITE VENTURES GP INC.
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Signature Signature
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Title Title
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Name Name
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Date Date
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