This Master Wireless Application Provider Agreement ("Agreement" or “MWAPA”) is entered into on 07 December 2016, by and between the ORBCOMM Networks, LLC and each of its Affiliate or Affiliates identified in Carrier Exhibits and/or Equipment Exhibits attached hereto or added hereto by later amendment (“ORBCOMM”), with its principal place of business located at 395 W. Passaic Street, Suite 325, Rochelle Park, New Jersey 07662, and CODAN Limited, a corporation established under the laws of Australia (the "Application Provider"), with its principal place of business located at 2 Second Avenue. Mawson Lakes, South Australia 5095.
(i) W I T N E S S E T H:
(ii) WHEREAS, ORBCOMM sells machine-to-machine data communications over terrestrial and satellite wireless communications systems through various system operators (each a “Carrier” and collectively the “ORBCOMM Network”), as well as certain modems and telematics devices for data collection and/or; and communication over various Carrier networks (“Equipment”); and
(iii) WHEREAS, Application Provider desires to market and sell access to and use of the ORBCOMM Network in the Territory solely with respect to the Service Application(s) (as defined herein below), and only through the Selected Carrier(s) (as defined below), in accordance with the terms of this Agreement (for avoidance of doubt, including the applicable Carrier Exhibit(s)); and
(iv) WHEREAS, if one or more Equipment Exhibit(s) is/are incorporated into this document by attachment or later amendment, then Application Provider desires to purchase, and ORBCOMM desires to sell, the identified Equipment on the terms and conditions of this Agreement (for avoidance of doubt, including the applicable Equipment Exhibit(s);
(v) 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. "Administrative Charges" means the standard charges and fees of ORBCOMM for performing administrative changes with respect to particular Subscriber Communicators as set forth on the applicable Pricing Rate Schedule(s).
2. "Affiliate" means, with respect to any Person (i) any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. As used herein, the term "control" means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
3. "Agent" means a Person (other than a Application Provider or an Affiliate of Application Provider) that is authorized pursuant to Section 16 hereof to market and sell Service on Application Provider’s behalf.
4. "Billing Cycle" means that period selected by ORBCOMM for billing charges incurred by Application Provider and due to ORBCOMM; provided that ORBCOMM may from time to time change such period upon notice to Application Provider.
5. "Billing Cycle Amount" means, with respect to any Billing Cycle, the sum of all charges incurred for such Billing Cycle (or, to the extent not previously billed, any prior Billing Cycle), including Usage Charges (prorated for the number of days during such Billing Cycle each Subscriber Communicator is provisioned), Provisioning Charges, Administrative Charges and Miscellaneous Charges, for all Subscriber Communicators in each case, calculated using the prices set forth in the Pricing Rate Schedule.
6. “Carrier” means any operator of a satellite or terrestrial wireless communications network that is a part of the ORBCOMM Network. Carriers may or may not be Affiliates of ORBCOMM.
7. “Carrier Exhibit” means a document attached to this Agreement and hereby incorporated by reference or added hereto by future amendment that describes the Service Application(s) utilizing a particular Carrier’s network that Application Provider is authorized to offer and resell or otherwise provide to its End User customers and incorporating by reference the Special Terms and Conditions applicable to services of the particular Selected Carrier.
8. "Control" (including the correlative meanings of the terms "Controlling", "Controlled by° and "under common Control with"), as used with respect to any Person, means the possession, directly or Indirectly, of the power in fact or in law to direct or cause the direction of management policies of such Person, whether through ownership of voting securities, by contract or otherwise.
9. "Effective Date" means the date of this Agreement as set forth in the Preamble.
10. “End User” means a person or entity purchasing ORBCOMM Services from Application Provider for use with its own Subscriber Communicators by its employees, contractors, agents and customers, and/or its own affiliates and their employees, contractors, and agents and customers, but not for resale.
11. “Equipment” means modems, telematics units, electronic modules and other hardware manufactured by or for ORBCOMM or which an ORBCOMM Affiliate is an authorized reseller, Software Components, and Peripheral Devices.
12. “Equipment Exhibit” means a document attached to this Agreement and hereby incorporated by reference or added hereto by future amendment that describes the Equipment of a particular Equipment Provider that Application Provider is authorized to purchase and resell or otherwise provide to its End User customers and incorporating by reference the Special Terms and Conditions applicable to services of the particular Selected Equipment Provider.
13. “Equipment Provider” means an ORBCOMM Affiliate that provides Equipment and with respect to which an Equipment Exhibit is included in this Agreement by attachment or future amendment.
14. "Event of Default" has the meaning set forth in Section 17.
15. "Facilities" means the telecommunications switching equipment, cell site transceiver equipment and other equipment maintained, expanded, modified or replaced by the applicable Carrier as the context requires.
16. "FCC" means the United States Federal Communications Commission or any successor agency thereto.
17. "First-Line Support" means customer support that is provided using a facility that is staffed by trained personnel who are equipped, among other things, to receive telephone, facsimile and e-mail inquiries from Subscribers and to dispose of such inquiries promptly by (i) resolving such inquiries and/or (ii) opening trouble tickets, which may involve elevating such inquiries to higher levels of support as necessary, monitoring the resolution process and informing the Subscriber of the status of the relevant trouble ticket and of the ultimate resolution of the trouble ticket. First-Line Support also includes the ability to monitor and track the types of inquiries received and the status of such inquiries.
18. "Governmental Authority" means any federal, state, local or other governmental agency or authority of the United States or any other country.
19. "Intellectual Property" means any and all now known or hereafter known tangible and intangible rights throughout the universe, including but not limited to: (a) copyrights, copyrightable works and mask-works, (b) Internet domain names, trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) including but not limited to logos, "rental" rights and right to remuneration, whether arising by operation of law, contract license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any and all of the foregoing), as the foregoing terms are understood under United States law.
20. "Minimum Billing Cycle Amount" means the sum of the Minimum Billing Cycle Amounts, if any, set forth in all of the Carrier Exhibits and Pricing Rate Schedules.
21. "Miscellaneous Charges" means such miscellaneous charges of ORBCOMM as may be in effect from time to time.
22. “Number” means the ten (10) digit telephone number assigned to an End User to identify End User’s Subscriber Communicator and provide access to a Carrier’s Services
23. “ORBCOMM” means ORBCOMM Networks, LLC and any of its Affiliates that have executed this Agreement or a Carrier Exhibit or Equipment Exhibit in connection herewith.
24. "ORBCOMM Graphic Identity Manual" means the ORBCOMM Graphic Identity Manual, available, upon written request to ORBCOMM, as such ORBCOMM Graphic Identity Manual may be modified from time to time by ORBCOMM.
25. "ORBCOMM Network" means the terrestrial wireless communications network(s) operated by the Selected Carrier(s) available for resale by Application Provider through ORBCOMM or any successors and assigns thereof.
26. "Permits" means any franchise, license, license exemption, consent, approval, authorization, registration, equipment type approval, or import approval; the issuance of which is required by a Governmental Authority with jurisdiction in any country in the Territory, to facilitate the provision of ORBCOMM Services by Application Provider in accordance with this Agreement; and includes all required FCC or other Governmental Authority registrations and/or approvals with respect to any Equipment sold hereunder.
27. “Peripheral Devices” means any Equipment furnished by ORBCOMM to Customer hereunder that was not manufactured by or for ORBCOMM and carrying the ORBCOMM brand, such as temperature probes, door sensors, fuel sensors, antennas, cargo sensors, cabling, and conduits.
28. "Person" means an individual or a corporation, partnership, association, trust or any other entity or organization.
29. "Pricing Rate Schedule" means a schedule of prices applicable with respect to Application Provider’s Service Applications utilizing a particular Carrier’s network that is associated with a Carrier Exhibit and/or a schedule of Equipment prices applicable to Application Provider’s purchases of Equipment that is associated with an Equipment Exhibit. All such Pricing Rate Schedules are incorporated by reference herein subject to revision as provided in the applicable Special Terms and Conditions.
30. "Provisioning Charge" means the charge for the activation of a particular Subscriber Communicator for use in connection with the ORBCOMM Network in the Territory, or outside the Territory if Roaming Approved, as set forth on the applicable Pricing Rate Schedule for the Carrier with whom the Subscriber Communicator is provisioned.
31. "Roaming" means the temporary use of a Subscriber Communicator outside of the applicable Carrier’s service area with the prior approval of the applicable Carrier.
32. "Roaming Approved" means an Application which has been approved by ORBCOMM and the applicable Carrier to incorporate roaming.
33. “Selected Carrier” means a Carrier whose services Application Provider is authorized to resell by virtue of being approved by the Carrier and ORBCOMM and executing the appropriate Carrier Exhibit, and Pricing Rate Schedules.
34. “Selected Equipment Provider” means an Equipment Provider whose Equipment Application Provider is authorized to resell or otherwise provide to its End Users by virtue of being approved by ORBCOMM and executing the appropriate Equipment Exhibit and Pricing Rate Schedule.
35. “Service” means the use of the ORBCOMM Network as described in the Carrier Exhibits.
36. “Service Application(s)” means all of Application Provider’s and Application Provider’s End User customers’’ permitted uses of the Service as set forth in the respective Carrier Exhibit and approved by the Carrier and ORBCOMM.
37. “SIM” means a subscriber identity module for cellular communications service, or comparable device as designated by the applicable Carrier for installation on Subscriber Communicators that use such Carrier’s network.
38. “Software Components” means software and firmware programs embedded in hardware or otherwise furnished under this Agreement and a Related Order, but does not include any ORBCOMM website or functionality thereof.
40. "Subscriber" means a customer purchasing access to and use of the ORBCOMM Network from Application Provider or an Agent of Application Provider.
41. "Subscriber Communicator" means the equipment used by Application Provider or its Agents or Subscribers to access the ORBCOMM Network, incorporating a terrestrial wireless communication device that has been Type Approved by or on behalf of the applicable Carrier for use on such Carrier’s network, in which a Carrier SIM has been installed, and to which a Number has been assigned.
42. "Subscriber Information" means any information regarding a Subscriber or Subscriber Communicator provided to ORBCOMM by Application Provider, Application Provider's Agents or Application Provider's employees during the term of this Agreement.
43. "Territory" means, with respect to each Selected Carrier and Selected Equipment Provider, the geographic or other market territory set forth in the applicable Carrier Exhibit or Equipment Exhibit.
44. "Type Approved" means the approval for use with the ORBCOMM Network granted by or on behalf of the applicable Carrier to each model or type of wireless device based on the applicable Carrier’s determination that such model or type of modem meets the requirements set forth in the applicable specifications and successfully meets the testing requirements of such Carrier.
45. "Usage Charges" means the per unit charges incurred by a particular Subscriber Communicator as set forth on the Pricing Rate Schedule.
2. PARTIES TO AND DOCUMENTS COMPRISING THIS AGREEMENT
1. ORBCOMM and Application Provider are the only parties to this Agreement, and the parties do not intend to create rights in any third parties under this Agreement. This document and the applicable Carrier Exhibit(s) or Equipment Exhibit(s) between Application Provider and a particular ORBCOMM Affiliate shall be deemed to be a separate contract and nothing in this Agreement shall be deemed to create joint and several liability among ORBCOMM Affiliates or to render any ORBCOMM Affiliate not a party to a particular Carrier Exhibit or Equipment Exhibit liable for any matters arising thereunder. Each party is solely responsible for its obligations under this Agreement. No Carrier that is not an Affiliate of ORBCOMM is a party to this Agreement, and Application Provider acknowledges and agrees that it has no contractual rights whatsoever with respect to any such Carrier and no such Carrier has any contractual obligation to Application Provider by virtue of this Agreement.
2. This Agreement shall consist of the terms and conditions in this document; any applicable Special Terms and Conditions as to matters relating to their respective Selected Carriers and/or Selected Equipment Providers; the Carrier Exhibit(s) and Equipment Exhibit(s) and associated Pricing Schedule(s) as to matters relating to their respective Selected Carriers and/or Selected Equipment Providers, as well as any applicable taxes, tariffs or other regulations of Governmental Authority. In the event of an inconsistency between a term or condition contained in any component documents comprising this Agreement with any other (but only to the extent of inconsistency), the order of precedence, from the most to the least controlling shall be:
1. Applicable taxes, applicable filed and effective tariff(s), and other applicable governmental regulations from and after their respective effective dates;
2. Any amendments or modifications to this Agreement to the extent properly executed by authorized representatives of all parties or to the extent noticed to Application Provider with expiration of the time to exercise an option to terminate as provided in Section 20(d)(ii), below;
3. Carrier Exhibits and Equipment Exhibits and associated Pricing Rate Schedules as to matters relating to their respective Carriers and/or Equipment Providers.
4. Applicable Special Terms and Conditions, each set only with respect to matters relating to the associated Carrier or Equipment Provider;
5. Terms contained in this document;
3. PURCHASE OF SERVICE AND SIMS; NON-EXCLUSIVE LICENSE
1. Purchase and Sale. ORBCOMM hereby agrees to sell to Application Provider, and Application Provider hereby agrees to buy from ORBCOMM, Service and SIMs pursuant to the terms of this Agreement in connection with the use of the ORBCOMM Network solely within the Territory and solely with respect to the Service Application(s). SIMs are specific to the Carrier and cannot be interchanged. Some Carriers (ordinarily those operating satellite networks) do not require SIMs. The offer, provisioning and delivery of Service are subject at all times to the receipt by ORBCOMM and, to the extent applicable, Application Provider, of all Permits from Governmental Authorities having jurisdiction over the Service or any Carrier or ORBCOMM.
2. Non-Exclusive License to Resell. ORBCOMM hereby grants to Application Provider a non-exclusive license to resell or otherwise provide the Service and SIMs in accordance with the terms of this Agreement solely within the Territory and solely with respect to the Service Application(s). Any purported resale by Application Provider to a prospective Subscriber who is not an End User, a Subscriber outside of the Territory, to any Subscriber other than with respect to the Service Application(s) or other than pursuant to the terms and conditions of this Agreement, shall be null and void.
3. Non-Exclusive License to Promote. ORBCOMM hereby grants to Application Provider a non-exclusive license to promote, solicit and market access to and use of the ORBCOMM Network solely within the Territory and solely with respect to the Application. For avoidance of doubt, Application Provider acknowledges and agrees that Application Provider is a non-exclusive purchaser and Application Provider of the Service, that ORBCOMM and the Carriers will have other Application Providers, agents, and other representatives that sell the Service and ORBCOMM may directly compete with Application Provider, and that Application Provider may resell the service of other wireless communications network operators.
4. Sublicense. Subject to Section 16, and unless prohibited by applicable Special Terms and Conditions, Application Provider may sublicense Agents to promote, solicit and market access to and use of the ORBCOMM Network on Application Provider’s behalf, provided that a Subscriber shall, in any event, purchase and receive services directly from Application Provider and not from any Agent.
4. SALE AND RESALE OF EQUIPMENT
(a) Purchase and Sale. If and to the extent that this Agreement includes an Equipment Exhibit, ORBCOMM hereby agrees to sell to Application Provider, and Application Provider hereby agrees to buy from ORBCOMM, Equipment identified on the Equipment Exhibit(s) at the prices associated Pricing Rate Schedule(s) and subject to the applicable Special Terms and Conditions. The offer and sale of Equipment is at all times to the receipt by ORBCOMM and, to the extent applicable, Application Provider, of all Permits from Governmental Authorities having jurisdiction over the Equipment in the country or countries in which it is to be deployed by Application Provider.
1. Non-Exclusive License to Resell. ORBCOMM hereby grants to Application Provider a non-exclusive license to resell or otherwise provide the Equipment purchased hereunder to its Subscribers in the applicable Territory. Application Provider shall not resell or otherwise provide any Equipment to a prospective Subscriber who is not an End User, for use outside the applicable Territory, or for use other than with respect to a Service Application of Application Provider.
(b) Sublicense. Subject to Section 16, and unless prohibited by applicable Special Terms and Conditions, Application Provider may sublicense Agents to promote, solicit and market Equipment on Application Provider’s behalf, provided that a Subscriber shall, in any event, purchase and receive Equipment directly from Application Provider and not from any Agent.
5. TERM OF AGREEMENT
(vi) The term of this Agreement shall commence on the Effective Date and continue for a period of three (3) years unless sooner terminated as provided in this Agreement (hereinafter the "Initial Term"). In the absence of earlier termination, upon expiration of the Initial Term, this Agreement shall automatically renew for a period of one (1) year unless either party gives notice of intention not to renew at ninety (90) days prior to expiration of the then-current term, and so from term to term until expiration after such a notice of intention not to renew or termination as otherwise provided in this Agreement (each, a “Renewal Term”). The Initial Term and all Renewal Terms may be referred to herein as the “Term.” Each Carrier Exhibit, Equipment Exhibit and/or Special Terms and Conditions may have its own term and renewal provisions, but all Carrier Exhibits, Equipment Exhibits and Special Terms and Conditions shall automatically expire when the MWAPA expires or is terminated, subject to applicable survival provisions.
6. RESPONSIBILITIES OF APPLICATION PROVIDER
1. Promotion. Application Provider shall promote, solicit and market access to and use of the ORBCOMM Network within the Territory and with respect to the Application. Application Provider shall use all reasonable efforts to secure and retain Subscribers for the Service Application(s) in the Territory. Application Provider shall not promote, solicit or market access to and use of the ORBCOMM Network or otherwise take any action or participate in any activity that is reasonably likely to result in the promotion, solicitation or marketing of access to and use of the ORBCOMM Network outside of the Territory. Application Provider shall not promote, solicit or market access to the ORBCOMM Network in connection with any application other than the Service Application(s).
2. Sales Forecast. Application Provider shall, no later than fifteen (15) days prior to the commencement of each calendar quarter, provide ORBCOMM with a written sales forecast, in such form as ORBCOMM may reasonably prescribe (the "Sales Forecast"), setting forth in reasonable detail the information requested. Application Provider shall prepare the Sales Forecast on the basis of Application Provider's good faith estimate of projected sales and on the basis of reasonable, good faith assumptions.
3. Provisioning. In addition to any actions required in the applicable Special Terms and Conditions, Application Provider shall promptly notify ORBCOMM, in the manner prescribed by ORBCOMM from time to time, of each Subscriber addition, Subscriber Communicator Number change, Subscriber suspension or deletion from the ORBCOMM Network or other change in the Service requested by Subscriber. Application Provider shall be responsible for all charges incurred from the date of any Subscriber addition through the date Application Provider properly notifies ORBCOMM of such Subscriber’s suspension, deletion or account transfer, Subscriber Communicator Number change or other Service change. In the event Application Provider does not properly notify ORBCOMM, in the manner prescribed by ORBCOMM, of a Subscriber suspension, deletion or account transfer, Subscriber Communicator Number change or other Service change, Application Provider shall be responsible for all charges incurred by that Subscriber through and including the business day following the business day Application Provider properly notifies ORBCOMM of that Subscriber’s suspension, deletion or account transfer, Subscriber Communicator Number change or other service change.
4. Payments. Application Provider shall be solely responsible for (i) billings to and collections from its Subscribers and (ii) all amounts due to ORBCOMM under Section 10 in accordance with invoices rendered by ORBCOMM with respect to any Subscriber Communicator under Application Provider’s account regardless of whether or not Application Provider bills and/or collects from its Subscribers in the manner prescribed by ORBCOMM from time to time.
5. Compliance. Application Provider represents, warrants, and covenants that (a) it shall comply in all material respects with all applicable local, state and federal laws and any governmental rule, regulation or ordinance including, but not limited to, all FCC regulations and rules, and (b) all functionality provided by Application Provider does and will comply in all respects with the Communications Assistance for Law Enforcement Act ("CALEA"). Application Provider represents and warrants that it has and will maintain all Permits necessary lawfully to resell or otherwise provide its Application, services of the ORBCOMM Network, and, if applicable, Equipment, in each country where Application Provider provides or deploys such services and/or Equipment.
6. Standards. Application Provider shall, and shall procure that its Agents shall, employ the highest standards of business conduct in the performance of its business and its obligations hereunder. Application Provider shall, and shall procure that its Agents shall, not do anything that could reasonably be expected to discredit, dishonor, reflect adversely on or injure the reputation of ORBCOMM, any Carrier, the Service, or the ORBCOMM Network or any Carrier network.
7. Support and Training. Application Provider shall provide adequate support and training to its Subscribers with respect to the access to and use of the ORBCOMM Network and the applicable Carrier network(s) in connection with the Service Application(s).
(h) Subscriber Contracts. Application Provider shall enter into a contract (which may include a purchase order or other similar binding agreement) with each of its Subscribers, which contract shall provide, in addition to such other terms and conditions as may be required in the Special Terms and Conditions for the applicable Carrier and the Application Provider may require (provided such Application Provider terms and conditions do not conflict with any of the terms required by this Section or the applicable Special Terms and Conditions), for the following provisions and the definitions from this agreement of capitalized terms therein:
1. Subscriber shall not have and shall not acquire any proprietary interest in the Number or any other numbers or codes associated with or allocated to a Subscriber Communicator.
2. NONE OF ORBCOMM OR ANY AFFILIATE OF ORBCOMM HAS MADE, OR SHALL BE DEEMED TO HAVE MADE, ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM NETWORK, ANY CARRIER NETWORK THE SERVICE, OR ANY EQUIPMENT PURCHASED IN CONNECTION THEREWITH. EACH OF ORBCOMM AND ITS AFFILIATES EXPRESSLY DISCLAIMS WITH RESPECT TO SUBSCRIBER AND SUBSCRIBER EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES OF ORBCOMM AND ITS AFFILIATES ARISING BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY WARRANTY AGAINST CLAIMS OF PATENT INFRINGEMENT OR THE LIKE; (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (D) ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF THE ORBCOMM NETWORK, ANY CARRIER NETWORK, THE SERVICE OR ANY OTHER SERVICES PROVIDED BY ORBCOMM OR ITS AFFILIATES USING THE ORBCOMM NETWORK; AND (E) ANY WARRANTY UNDER ANY THEORY OF LAW, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM OR ITS AFFILIATES.
3. Subscriber acknowledges and understands that it shall bear all responsibility, risk and cost associated with developing and maintaining its business, and neither ORBCOMM nor its Affiliates shall be liable to Subscriber for any costs or damages caused by any failure or impaired performance of the ORBCOMM Network, any Carrier Network or any component of any of them.
4. Subscriber acknowledges that ORBCOMM shall supply the Service on a good faith efforts basis and that service failures and interruptions may occur and are difficult to assess as to cause or resulting damages. The parties agree that none of ORBCOMM, the applicable Carrier, nor any Affiliate of either shall be liable to Subscriber for any losses or damages of any kind whatsoever arising out of any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communication line failure, theft or destruction or unauthorized access to, alteration of or use of records associated with the ORBCOMM Network or the Service, whether for breach of contract, tortious behavior, negligence or under any other cause of action.
5. IN NO EVENT SHALL ORBCOMM OR ITS AFFILIATES HAVE ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY TO SUBSCRIBER UNDER THIS AGREEMENT FOR LOSS OF USE, REVENUE OR PROFIT OR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. In addition, in no event shall any liability of ORBCOMM or its Affiliates exceed the amount of One Thousand U.S. Dollars (US$1,000.00).
6. Use of the ORBCOMM Network or the Service is authorized by Governmental Authorities only in certain countries, and is permissible only when all Permits have been received from the applicable Governmental Authorities. In addition, use of a Subscriber Communicator is only permissible if it has been specifically approved for use in that country or territory. For information on those countries or territories in which use of the ORBCOMM Network is authorized and whether a Subscriber Communicator has been approved for use in another country or territory, please contact your [NAME OF APPLICATION PROVIDER] representative.
(i) First-Line Support. Application Provider shall provide, at its own cost and expense, First-Line Support to Subscribers. Application Provider shall diligently investigate, with the assistance of ORBCOMM, if such assistance is reasonably requested by Application Provider, any complaint from any Subscriber relating to the provision of ORBCOMM Services to such Subscriber, and shall provide ORBCOMM with a summary report describing those complaints deemed significant by Application Provider, which report shall describe the reasons for such complaint.
(j) Inventory. Application Provider shall maintain a sufficient inventory of Subscriber Communicators in good working order for purposes of replacing defective or malfunctioning units, spares and new account sales. Application Provider shall work directly with the providers of the Subscriber Communicators to ensure that Subscriber Communicators in need of repair shall be promptly exchanged or repaired.
(k) Tax. Application Provider shall, and shall be responsible for ensuring that its Agents shall, provide ORBCOMM with a valid resale tax certificate, and accordingly, ORBCOMM is not required to collect from Application Provider or its Agents any sales, use, excise or other similar tax on the Service provided by ORBCOMM to Application Provider. All other applicable transfer taxes and filing, recording, registration, stamp, VAT, documentary and other similar taxes and fees that are payable in connection with this Agreement will be borne by and be the obligation of Application Provider and its Agents.
(l) Records and Audit. Application Provider shall maintain, at its principal place of business, complete, comprehensive and accurate records of Application Provider's business conducted pursuant to this Agreement. Records will include, but are not limited to, documents relating to sales of SIMs and Activation of Application Provider's resale Service to End Users. Both ORBCOMM and the underlying Carrier(s), or their respective agents, shall have the right to visit Provider's Affiliates' premises and facilities to inspect documents, records, and practices related to billing, End User customer service and Equipment at reasonable times and upon reasonable notice.
7. RESPONSIBILITIES OF ORBCOMM
1. Access. Subject to the provisions of this Agreement and the operational policies established by ORBCOMM and the applicable Carrier(s) in their sole discretion from time to time, ORBCOMM shall provide access to and use of the ORBCOMM Network to the Subscribers pursuant to the terms and conditions of this Agreement.
2. Equipment. To the extent an Equipment Exhibit is part of this Agreement and Equipment is ordered by Application Provider hereunder, ORBCOMM will furnish such Equipment to Application Provider, subject always to the applicable Special Terms and Conditions.
3. Invoices. Following the end of a Billing Cycle, ORBCOMM shall provide an invoice to Application Provider setting forth the Billing Cycle Amount and any charges for Equipment purchased charged to Application Provider for such Billing Cycle to the extent then known to ORBCOMM. Late charge are possible in the event data is not timely received from the applicable Carrier or Carriers or in the event of taxes or other governmental fees assessed against ORBCOMM after the applicable Billing Cycle but payable by Application Provider under this Agreement.
4. Licenses and Permits. ORBCOMM shall use all commercially reasonable efforts to maintain, or to cause its Affiliates to maintain, as the case may be, all Permits required by the FCC or any other applicable Governmental Authority for ORBCOMM to provide the Service, through the applicable Carriers, and the Equipment, through the applicable Equipment Providers, in the Territory.
5. Changes. Except where applicable Special Terms and Conditions require Application Provider to work directly with the Carrier to effect Subscriber changes, upon receipt of the notice referred to in Section 6(c), ORBCOMM shall effect such Subscriber addition, Communicator Number change, Subscriber deletion or suspension, or other change in service from the ORBCOMM Network within three business days or as soon thereafter as practicable.
SECTION 2 - Testing
(a) Fitness for Use. Notwithstanding anything else in this Agreement, Application Provider shall not promote, solicit and/or market access to and use of the ORBCOMM Network with respect to any Service Application until such Service Application has been tested by and at the sole expense of Application Provider and such testing demonstrates the Service Application's fitness for commercial use to the reasonable satisfaction of ORBCOMM, and, if required under the applicable Special Terms and Conditions, the Carrier. The test or tests to be utilized pursuant to this subsection shall be jointly developed by Application Provider and ORBCOMM and shall be satisfactory to ORBCOMM in its sole discretion to determine the fitness for commercial use of the Application with the ORBCOMM Network.
6. Subsequent Failure. In the event that a Service Application, which has been tested and approved pursuant to subsection (a) of this Section, subsequently fails to meet the reasonable standards for fitness for commercial use as determined by ORBCOMM from time to time, ORBCOMM may suspend Service to Application Provider, Subscribers, other Persons or Subscriber Communicators that utilize such Service Application until such time as Application Provider can demonstrate to ORBCOMM, at Application Provider's sole expense, that such Application is once again fit for commercial use to the reasonable satisfaction of ORBCOMM.
7. No Liability. In the event ORBCOMM suspends Service to Application Provider, Subscribers, other Persons or Subscriber Communicators that utilize such Service Application pursuant to subsections (a) or (b) of this Section, ORBCOMM shall not incur any liability to Application Provider, Application Provider's Agents or Subscribers. Application Provider shall indemnify and hold harmless ORBCOMM from any such liability for such suspension of service to Application Provider, Subscribers, other Persons or Subscriber Communicators that utilize such Service Application.
SECTION 3 - Restrictions on Access and Use
(a) Abuse and Fraudulent Use. Access to the ORBCOMM Network is furnished subject to the condition that there be no abuse or fraudulent use of the ORBCOMM Network by Application Provider, its Agents, the Subscribers or any other Person. Application Provider shall not abuse or fraudulently use the ORBCOMM Network and shall take any and all steps necessary to control and prevent abuse or fraudulent use of the ORBCOMM Network by its Agents, Subscribers and any other Person. Abuse or fraudulent use of the ORBCOMM Network includes, but is not limited to: (i) providing or attempting to provide, or assisting or permitting another Person to (A) access, alter or interfere with the communications and/or information of a Subscriber by rearranging, tampering or making an unauthorized connection with any Facilities of ORBCOMM or (B) use of any scheme, false representation or false credit device, with the intent to avoid payment, in whole or in part, for ORBCOMM Services; (ii) Using the ORBCOMM Network in such a manner so as to interfere unreasonably with the use of the ORBCOMM Network by other users; (iii) Using the ORBCOMM Network to convey information that is deemed, in ORBCOMM’s sole judgment, to be obscene, salacious or prurient, or to convey information of an unlawful nature or in an unlawful manner; or (iv) using the ORBCOMM Network in a manner that violates the policies relating to fraudulent or abusive use of the underlying Carrier.
8. Knowledge. Application Provider shall promptly advise ORBCOMM in the event Application Provider has knowledge or reason to believe that any Agent, Subscriber or any other Person is abusing or fraudulently using the ORBCOMM Network in violation of subsection (a) of this Section. In the event ORBCOMM is advised or reasonably believes that Application Provider, any Agent, Subscriber or other Person, is abusing or fraudulently using the ORBCOMM Network as described or referred to in this Section, ORBCOMM shall have the right to immediately terminate such Application Provider’s, Agent’s, Subscriber’s or other Person's access to the ORBCOMM Network for any or all of such Application Provider’s, Agent’s, Subscriber’s or other Person's Subscriber Communicators, and ORBCOMM shall have no liability for such termination of access to the ORBCOMM Network.
9. Electromagnetic Interference. The parties understand and acknowledge that from time to time one or more Application Providers, subscribers, other Persons or subscriber communicators may cause electromagnetic interference, either intentionally or unintentionally, with (i) the operation of the ORBCOMM Network in such a way as to impair the quality of service provided by ORBCOMM to its other Application Providers and subscribers or (ii) the operation of another system or application approved by the FCC or other Governmental Authority. Accordingly, the parties agree that: (i) ORBCOMM may, upon discovery or upon reasonable suspicion of any such interference or abuse by a Application Provider, subscriber, other Person or subscriber communicator, discontinue Service to the Application Provider, subscriber, other Person or subscriber communicator that is causing the interference or abuses; and, (ii) Application Provider shall promptly advise ORBCOMM in the event Application Provider has knowledge or reason to believe that any Agent, Subscriber, other person or any subscriber communicator is interfering with the operation of the ORBCOMM Network or any other system or application approved by the FCC or any other Governmental Authority.
10. Cure. In the event that a Subscriber Communicator interferes with or impairs the performance of the ORBCOMM Network or any of any other application approved by the FCC or any other Governmental Authority, whether intentional or unintentional, Application Provider shall immediately take any and all actions necessary and advisable to cure such interference or impairment (including, if necessary repair, replacement or deactivation of the applicable Subscriber Communicator).
11. Compliance. Application Provider shall, and shall procure that its Agents shall, comply with all applicable laws, rules and regulations of any applicable Governmental Authority in the performance of its obligations hereunder and in the use of the ORBCOMM Network or any Subscriber Communicator. Application Provider shall take any and all necessary action to prevent violations of all such applicable laws, rules and regulations by its Subscribers, Agents and employees in connection with the use of the ORBCOMM Network or any Subscriber Communicators, whether intentional or unintentional. In the event such a violation occurs, Application Provider shall immediately take any and all actions necessary or advisable upon consultation with ORBCOMM to cure such violation promptly. Application Provider shall promptly advise ORBCOMM in the event Application Provider has knowledge or reason to believe that any Agent or Subscriber is in non-compliance with any applicable law, rule or regulation. ORBCOMM may upon discovery, or reasonable suspicion of, any such violation discontinue ORBCOMM Services to such Agent or Subscriber.
12. Unusually High Usage. Should Application Provider detect or be advised by ORBCOMM of an instance of unusually high Subscriber Communicator usage or transmissions, Application Provider shall promptly investigate any such instance of unusually high Subscriber Communicator usage or transmissions and shall promptly report such findings to ORBCOMM for evaluation; provided, that ORBCOMM shall have the right to deactivate any such Subscriber Communicator.
13. Type Approved Wireless Devices.
1. Application Provider shall be responsible for ensuring that only Type Approved wireless devices are incorporated into Subscriber Communicators sold or otherwise distributed by it and that all Subscriber Communicators used by its Subscribers in connection with the ORBCOMM Network, and each Subscriber’s use thereof, at all times meets the regulatory requirements of the FCC and any other applicable Governmental Authorities. Upon the written request of Application Provider, ORBCOMM shall provide Application Provider from time to time with a list of Type Approved modems.
2. In the event any Subscriber Communicator manufacturer notifies Application Provider that a Subscriber Communicator does not meet the regulatory requirements of the FCC or any other applicable Governmental Authority, Application Provider shall promptly notify ORBCOMM of such non-conforming Subscriber Communicators. In the event Application Provider so notifies ORBCOMM, or ORBCOMM otherwise becomes aware that any Subscriber Communicator does not meet the regulatory requirements of the FCC or any other applicable Governmental Authority, ORBCOMM shall have the right to terminate immediately without notice such Subscriber Communicators’ access to and use of the ORBCOMM Network.
3. During the term of this Agreement, Application Provider shall maintain in full force and effect all Permits that are required in connection with the performance of its obligations hereunder, provided, however, that Application Provider, its Agents or Affiliates, shall not apply for any Permit or contact any Governmental Authority regarding any Permit, without first obtaining written authorization to do so from ORBCOMM. Upon the written request from ORBCOMM, Application Provider shall provide ORBCOMM reasonable evidence of the validity or effectiveness of any Permit held by or on behalf of Application Provider in connection with this Agreement.
14. Roaming. Application Provider shall not submit for activation any Subscriber Communicator for use outside of the Territory except in connection with Service Applications that are Roaming Approved.
15. Restrictions on Access. Application Provider shall notify its Agents and Subscribers regarding the foregoing restrictions on access as set forth in this Section.
8. FEES AND PAYMENT TERMS
1. Fees. Application Provider shall pay to ORBCOMM (or its designee) the greater of the Billing Cycle Amount or the Minimum Billing Cycle Amount for any Billing Cycle as provided in this Section. In addition, Application Provider shall pay to ORBCOMM the charges for Equipment shipped pursuant to Application Provider order and applicable taxes and other governmental fees, as provided in the applicable Equipment Exhibit, Pricing Rate Schedule, and Special Terms and Conditions.
2. Time for Payment. Fees are payable immediately upon receipt of invoice and past due on the thirty-first calendar day after the date of invoice.
3. Application of Amounts Received. Amounts received by ORBCOMM shall be applied by ORBCOMM to amounts due and owing by Application Provider to ORBCOMM in the following order of priority: (i) to all expenses (including reasonable attorney's fees) incurred by ORBCOMM in the collection of amounts due ORBCOMM; (ii) to all late fees due and owing pursuant to paragraph (f) below; (iii) to all past due Billing Cycle Amounts and; (iv) to the Billing Cycle Amount for the Billing Cycle most recently ending.
4. Currency. Except as may otherwise be provided in Special Terms and Conditions with respect to a particular Carrier, the currency of this Agreement shall be United States Dollars and all amounts to be paid by Application Provider pursuant to this Section shall be paid in such currency.
5. Method of Payment. All amounts to be paid by Application Provider pursuant to this Section shall be paid by check or wire transfer of immediately available funds or by credit card in accordance with ORBCOMM’s written instructions as set forth in the invoice.
6. Late Fees. All amounts to be paid by Application Provider pursuant to this Section must be received by the due date to be considered paid on time. ORBCOMM reserves the right to apply a late payment fee on any past-due balances in the amount equal to the lesser of: (i) one and one-half percent (1½%) per month of such amount beginning on the date the payment was due, and (ii) the maximum rate allowed under applicable law.
7. Taxes. The charges or fees set forth in the Pricing Rate Schedule exclude all present and future taxes, duties, required contributions or fees of any nature, including, but not limited to federal, state, national, provincial, local or other sales or use taxes, fees, excises, property or gross receipts taxes or fees, value-added taxes, telecommunication taxes, license or access fees, or other taxes or duties that may now or hereafter be levied on the services provided or on the charges or fees invoiced to Application Provider under this Agreement (collectively, "Taxes"). Any such Taxes, however denominated, that may now or hereafter be levied on the services provided or payments made under this Agreement, excluding taxes based on ORBCOMM’s net income, shall be paid by Application Provider and the relevant amount payable by Application Provider shall be increased by such amount as is necessary to make the actual amount received by ORBCOMM after such withholding equal to the amount that would have been received had no withholding been required and Application Provider shall make such withholding and pay the amount withheld to the relevant taxation authority. Application Provider is responsible for (i) the payment of Taxes, whether they are concurrently invoiced by ORBCOMM with the original invoiced amount or subsequently invoiced by ORBCOMM, (ii) determining the applicability to Application Provider of the tax laws of the jurisdiction where delivery occurs, and (iii) the collection and payment of all required Taxes from its Subscribers.
8. Disputed Invoices. Invoiced amounts shall be conclusively due from Application Provider unless Application Provider disputes them in writing within six (6) months (or such shorter period as may be provided in Special Terms and Conditions with respect to a particular Carrier) of receipt, stating the basis for dispute. If Application Provider disputes any invoiced amount, Application Provider shall nevertheless pay any undisputed amount of such invoice in a timely manner. If ORBCOMM receives a timely written notice of dispute as to an invoice, amounts in dispute shall not incur Late Fees until and unless determined to be correct, and the process of determination shall be as follows:
1. ORBCOMM shall investigate the basis for dispute stated in the notice of dispute received from Application Provider, and, to the extent the dispute involves information received from the Carrier, raise the matter with the Carrier, and Application Provider shall cooperate reasonably with ORBCOMM and the Carrier in determining the underlying facts;
2. If ORBCOMM and, if applicable, the Carrier, agree that any portion of the disputed amount is erroneous, ORBCOMM shall issue a corrected invoice;
3. If and to the extent that ORBCOMM determines that the disputed amount represents an amount truly due from Application Provider, ORBCOMM shall advise Application Provider of that determination and the basis for it in writing and such amount shall be due and payable with thirty (30) days of such notice;
4. If ORBCOMM’s determination that the disputed amount is truly due from Application Provider is based on a determination made by the Carrier, then the decision of the Carrier is conclusive on Application Provider;
5. If clause (iv) does not apply and Application Provider still disputes a charge that ORBCOMM has determined to be correct, the parties shall confer together in an effort to resolve the dispute amicably. If they are unable to resolve the dispute amicably within a reasonable time, then Section 19 shall apply.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
1. Application Provider's Representations and Warranties. Application Provider represents and warrants to ORBCOMM that (i) Application Provider is duly organized or formed, validly existing and in good standing under the laws of the state of its organization or formation, as the case may be, and in each jurisdiction in which the nature of its business requires it to be so, (ii) the execution, delivery and performance of this Agreement by Application Provider have been duly authorized by all necessary action (corporate or otherwise) on the part of Application Provider, (iii) this Agreement has been duly executed and delivered by Application Provider and constitutes a legally valid and binding obligation of Application Provider, enforceable against Application Provider in accordance with its terms, (iv) Application Provider has all Permits necessary for Application Provider to enter into and perform its obligations under this Agreement, and (v) Application Provider shall not violate any copyright, trade secret, trademark, patent, invention, proprietary information, privacy, non-disclosure or any other statutory or common law rights of any third party in the performance of its obligations under this Agreement.
2. ORBCOMM's Representations and Warranties. ORBCOMM represents and warrants to Application Provider that (i) ORBCOMM is duly organized or formed, validly existing and in good standing under the laws of the state of its organization or formation, as the case may be, and in each jurisdiction in which the nature of its business requires it to be so, (ii) the execution, delivery and performance of this Agreement by ORBCOMM have been duly authorized by all necessary action (corporate or otherwise) on the part of ORBCOMM, (iii) this Agreement has been duly executed and delivered by ORBCOMM and constitutes a legally valid and binding obligation of ORBCOMM, enforceable against ORBCOMM in accordance with its terms, and (iv) ORBCOMM or its Affiliates have all Permits necessary for ORBCOMM to enter into this Agreement and perform its obligations in accordance with the terms hereof.
3. Indemnification. Application Provider and ORBCOMM agree to indemnify and hold harmless the other and its Affiliates, and their respective stockholders, members, officers, directors, employees, agents and representatives against all claims, demands, losses, costs or liabilities (including reasonable attorneys’ fees and costs) arising from or in connection with their respective breach of any representations, warranties, covenants or agreements contained herein.
10. Disclaimer of Warranties and Limitation of Liability
(vii) (a) Disclaimer of Warranties.
(viii) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF ORBCOMM OR ANY OF ITS AFFILIATES HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM SYSTEM OR THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ORBCOMM AND ITS AFFILIATES EXPRESSLY DISCLAIM WITH RESPECT TO APPLICATION PROVIDER AND ITS AGENTS AND SUBSCRIBERS, AND APPLICATION PROVIDER (ON ITS OWN BEHALF AND ON BEHALF OF ITS AGENTS AND SUBSCRIBERS) HEREBY EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES OF ORBCOMM AND ITS AFFILIATES ARISING AT LAW, EQUITY OR OTHERWISE, WITH RESPECT TO, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY AGAINST CLAIMS OF PATENT INFRINGEMENT OR THE LIKE; (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (D) ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF THE ORBCOMM SYSTEM OR THE SERVICE; AND (E) ANY WARRANTY UNDER ANY THEORY OF LAW OR EQUITY, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM.
(ix) (b) Limitation of Liability.
(x) (i) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT OR SERVICES, OR DAMAGES TO BUSINESS OR REPUTATION, WHETHER FORESEEABLE OR NOT ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE BY A PARTY OF ANY ASPECT OF THIS AGREEMENT WHETHER IN CONTRACT OR TORT OR OTHERWISE, AND WHETHER THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In addition, without limiting the generality of the foregoing, Application Provider acknowledges and agrees that it shall have no right of recovery for the satisfaction of any cause whatsoever, arising out of or relating to this Agreement, against (a) any Affiliate of ORBCOMM, (b) any Carrier or other supplier of services or equipment used in the provision of the Service in any circumstances in which ORBCOMM or its Affiliates would be obligated to indemnify the supplier, or (c) any officer, director, employee, agent, partner or shareholder of ORBCOMM or its Affiliates.
(xi) (ii) Application Provider acknowledges that interruptions of Service may occur from time to time as the result of, among other things: (A) placing Subscriber Communicators in locations out of range of, or in positions that preclude a Subscriber Communicator’s visibility to, Carrier transponders (e.g., in a tunnel); (B) unavailability of Carrier or roaming service in the area where a Subscriber Communicator is located, and (C) topographical and other conditions. Application Provider acknowledges that service interruptions are difficult to assess as to cause or resulting damages. The parties agree that ORBCOMM and its Affiliates shall not be liable to Application Provider, its Agents or Subscribers for any losses or damages arising out of any failure or impaired performance of, error, omission, interruption, deletion, defect, delay in operation or transmission, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of records, associated with the ORBCOMM Network or any component thereof, whether for breach of contract, warranty, negligence or under any other cause of action.
(xii) (iii) None of ORBCOMM or any of its Affiliates shall be liable for any act or omission of Application Provider, any of its Agents or any other person or entity furnishing equipment, products or services to Application Provider or its Agents or Subscribers, nor shall ORBCOMM or its Affiliates be liable for any damages or losses of any kind whatsoever due to any act or omission of Application Provider or its Agents or Subscribers or the failure of such equipment, products or services.
(xiii) (iv) The aggregate liability of ORBCOMM and its Affiliates for any claim arising out of, in connection with or relating to this Agreement shall be limited to direct damages proven in an amount not to exceed Ten Thousand U.S. Dollars (US$10,000).
(xiv) (v) The parties have accepted the limitations of liability set forth herein as part of the exchange of consideration under this Agreement and Application Provider expressly acknowledges that the prices for the ORBCOMM Services would be higher if ORBCOMM were requested to bear additional liability for damages.
11. Marks and Associated Rights
1. Cooperation. Application Provider shall, and shall cause its Agents to, cooperate with ORBCOMM, at ORBCOMM’s expense, in providing support and any information that reasonably may be required in defense of the ORBCOMM Marks as a result of the use thereof by Application Provider or its Agent(s) pursuant to this Agreement.
2. Revocation. ORBCOMM reserves the right to revoke the license to use the ORBCOMM Marks, if, in its sole discretion, it determines that Application Provider or its Agents have improperly used any such material.
3. Prohibited Acts. Application Provider agrees, and shall cause its Agents, not to (i) knowingly engage in any activities or commit any acts, directly or indirectly, that may contest, dispute or otherwise impair ORBCOMM’s right, title and interest in the ORBCOMM Marks, (ii) sublicense use of the ORBCOMM Marks to any other Person, except to an Affiliate or Agent, without the express written consent of ORBCOMM; (iii) attempt to register any of the ORBCOMM Marks or any other trademarks confusingly similar thereto; or (iv) use any trademarks confusingly similar to the ORBCOMM Marks. This provision shall survive termination of this Agreement.
4. Approvals. Application Provider shall be required to obtain for itself and its Agents to whom it has granted sublicenses under the ORBCOMM Marks, the prior written consent of ORBCOMM for (i) any advertising, packaging, promotional, instructional and billing materials that contain references to ORBCOMM, or (ii) any use of the word "ORBCOMM" for a logo, trademark, service mark or trade name; provided that if such materials or use, as the case may be, comply with the provisions of ORBCOMM’s Graphic Identity Manual with respect thereto, the prior written consent of ORBCOMM shall not be required. Further, unless rejected within ten (10) days of receipt thereof by ORBCOMM, such materials or use shall be deemed approved by ORBCOMM.
12. Proprietary Information, Non-Disclosure
(a) Proprietary Information. For purposes of this Agreement, “Proprietary Information” means information of any kind in written, documentary or other tangible form disclosed by ORBCOMM or Application Provider to the other and marked by the disclosing party with a legend, stamp, label or other marking indicating its proprietary or confidential nature, or, if not in tangible form, is clearly identified as confidential at the time of the disclosure, including, but not limited to, (i) information of a business, planning, marketing or technical nature, (ii) models, tools, hardware and software, and (iii) any documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the receiving party that contain, summarize or are based upon any of the foregoing. The parties hereby agree that Subscriber Information and any Proprietary Information (as defined in the Mutual Non-Disclosure Agreement signed by the parties) is Proprietary Information for purposes of this Agreement. Proprietary Information shall not include information that (i) is publicly available prior to the date of this Agreement, (ii) becomes publicly available after the date of this Agreement through no wrongful act of the receiving party, (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose, (iv) is rightfully known by the receiving party without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party without proprietary restrictions from a source other than the disclosing party or (v) is independently developed by the receiving party by persons who did not have access, directly or indirectly, to the Proprietary Information.
1. Non-Disclosure. Except as provided for herein, from the Effective Date of this Agreement until three (3) years following the date on which Application Provider ceases to be a Application Provider of ORBCOMM Services, the receiving party shall protect all of the disclosing party's Proprietary Information as confidential and proprietary information and, except with the prior written consent of the disclosing party or as otherwise specifically provided herein, shall not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity. It shall not be deemed a breach of this Agreement if the receiving party produces the Proprietary Information under order of a court of competent jurisdiction or a valid administrative, arbitral or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may seek an appropriate protective order.
2. Representatives. The receiving party shall not disclose all or any part of the disclosing party's Proprietary Information to any Affiliates, Agents, officers, directors, employees or representatives (collectively, “Representatives”) of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the disclosing party's Proprietary Information of the confidential and proprietary nature thereof and of such Representative's obligations with respect to the maintenance of such Proprietary Information in conformance with the terms of this Agreement.
3. Degree of Care. The receiving party shall use the same degree of care to protect the confidentiality of the Proprietary Information disclosed to it as it uses to protect its own Proprietary Information, but in all events shall use at least a reasonable degree of care. Each party represents that such degree of care provides adequate protection for its own proprietary information. The receiving party shall immediately advise the disclosing party in writing of any misappropriation or misuse by any person of the disclosing party's Proprietary Information of which the receiving party is aware.
4. Return of Proprietary Information. All Proprietary Information that is furnished by or on behalf of the disclosing party, including, without limitation, any copies of such materials, shall be promptly returned by the receiving party to the disclosing party upon written request by the disclosing party for any reason. Any documents or materials prepared by or on behalf of the receiving party (including, without limitation, reports, memoranda, notes, files or analyses, whether in written or electronic form) which contain Proprietary Information, including all copies, shall promptly be destroyed by the receiving party upon written request by the disclosing party for any reason. Such destruction shall be certified by an officer of the receiving party. Nothing in this Section shall require a party to destroy or modify information system back-up media kept in the ordinary course of business; however, any Proprietary Information contained in such media shall remain subject to the restrictions of this Section for so long as kept by the receiving party, subsection (b) notwithstanding.
5. No License or Warranties. Except as set forth in this Agreement, no license to the receiving party under any trade secrets or patents is granted or implied by conveying Proprietary Information or other information to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement with respect to the infringement of patents or other rights of others. In addition, the disclosure of Proprietary Information by the disclosing party shall not constitute or include any representation or warranty as to the accuracy or completeness of such information.
13. U.S. GOVERNMENT SUBSCRIBERS
14. APPROVAL OF AGENTS
1. Conditions. Except as may be prohibited by applicable Special Terms and Conditions, Application Provider may appoint a Person as an Agent without the prior written approval of ORBCOMM; provided, that such appointment is in writing and states that such Person agrees to comply with the following:
1. such Person shall agree in writing that it shall be bound by, and shall perform its obligations in accordance with, the terms and conditions of this Agreement and shall conduct its business in such a manner as to not cause a violation of any of the provisions of this Agreement or any of the policies which ORBCOMM may establish from time to time concerning Agents or the marketing of ORBCOMM Services;
2. such Person shall make to and agree with ORBCOMM in writing representations, warranties and covenants of a substantially similar nature as the representations, warranties and covenants of Application Provider set forth in Section 11(a); and
3. such Person shall agree in writing to indemnify and hold harmless ORBCOMM and its Affiliates and their respective stockholders, members, officers, directors, employees, agents and representatives against all claims, demands or liabilities (including reasonable attorney's fees and out-of-pocket expenses) arising from or in connection with (A) such Person's breach of its representations, warranties, covenants or agreements made to ORBCOMM or Application Provider or (B) such Person's actions or omissions as an Agent of Application Provider;
(xv) and provided further, that such agreements in writing shall contain enforceable provisions making ORBCOMM a third party beneficiary thereof, to the extent ORBCOMM is not a direct party thereto.
2. Termination. Application Provider shall terminate any Agent, promptly upon the request of ORBCOMM or the applicable Carrier, if such Agent fails to observe or perform any of its covenants and agreements as an Agent, including those covenants and agreements set forth in subsection (a) of this Section.
(xvi) The following events shall constitute events of default ("Events of Default") under this Agreement:
(xvii) (a) Application Provider fails to pay any amount to ORBCOMM when due as set forth in Section 10; or
(xviii) (b) Application Provider, any of its Agents or any of its Subscribers shall fail to observe, perform or comply with any of the covenants or agreements contained in Section 6 of this document or any provision of this document or applicable Special Terms and Conditions relating to equipment requirements, regulatory matters, restrictions on use, unlawful or fraudulent acts, or any other provision that would or could adversely impact the operation of the ORBCOMM Network or the Service of any customer of ORBCOMM or its Application Providers or agents; or
(xix) (c) Application Provider or any of its Agents shall fail to observe, perform or comply with any of its covenants or agreements contained in this Agreement or any of its attachments (other than as specified in subsections(a) or (b) of this Section) and such failure remains uncured for a period of thirty (30) days after receipt by the breaching party of written notice of such failure; or
(xx) (d) any representation, covenant or warranty made by or on behalf of Application Provider (or any Agent) contained in this Agreement or in any other agreement in connection therewith shall prove to be incorrect, false or misleading on the date as of which they were made or deemed to have been made.
(xxi) (e) Default as to any one Carrier Exhibit or Equipment Exhibit may, at ORBCOMM’s sole option, be deemed default under all.
1. Right to Terminate. Upon the occurrence of an Event of Default, ORBCOMM shall have the right to terminate this Agreement (or, at ORBCOMM’s sole option, the affected Carrier Exhibit or Equipment Exhibit only) by giving notice of termination to Application Provider. The parties agree that the definitions set forth in Section 1, Application Provider’s obligation to pay any and all amounts due and owing by Application Provider and all other obligations accruing under this Agreement prior to the expiration or termination of this Agreement, as well and the covenants and obligations of the parties with respect to taxes and other obligations to Governmental Authorities, Proprietary Information and data protection, representations and warranties and disclaimers of warranties, indemnification, disclaimers and limitations of liability, trade or service marks or other intellectual property, dispute resolution, and the miscellaneous matters addressed in Section 20, below, all shall survive the expiration or termination of this Agreement.
2. Automatic Termination. Each Carrier Exhibit and associated Schedules and Special Terms and Conditions relating to a Carrier that is not an Affiliate of ORBCOMM shall automatically terminate upon termination of the underlying agreement between ORBCOMM and the Carrier and may terminate sooner as provided therein. This Agreement shall automatically terminate upon the earlier of (i) the expiration of the Term without renewal by written agreement of ORBCOMM and Application Provider; or (ii) the termination of the last effective Carrier Exhibit and, if applicable, Equipment Exhibit under the applicable Special Terms and Conditions.
3. No Liability. In the event ORBCOMM terminates this Agreement pursuant to an Event of Default, ORBCOMM may terminate or temporarily discontinue furnishing service to Application Provider without incurring any liability to Application Provider or its Agents or Subscribers. Application Provider shall indemnify and hold harmless ORBCOMM from any such liability for such termination or temporary discontinuation of service to Application Provider’s Subscribers.
4. Without Prejudice. Termination of this Agreement by ORBCOMM shall be without prejudice to any other rights or remedies ORBCOMM shall have at law or equity.
5. Responsibility for Obligation to Subscribers. After termination of this Agreement, Application Provider shall remain solely responsible for all obligations to its Subscribers.
6. Cancellation of Order. Upon the giving or receiving of any notice of termination, ORBCOMM shall be entitled to, without liability, cancel any previously accepted orders for SIMs or to provide Services to new Subscribers that have not yet been delivered or activated, as the case may be.
7. Return of Equipment and Documents. Upon termination, Application Provider shall promptly return to ORBCOMM (i) any ORBCOMM equipment, other than equipment that has been paid for in full by Application Provider, and (ii) originals and any copies of the ORBCOMM Graphic Identity Manual, any marketing collateral or any technical or other manuals or documents, whether in written, electronic, magnetic, or other form or media, or provide ORBCOMM with written certification of their destruction.
17. DISPUTE RESOLUTION
1. Arbitration. (i) Except as provided for in Section 20(d)(ii) and 20(l), any controversy or claim arising out of, in connection with or relating to this Agreement including without limitation any disputes as to the formation or subject matter hereof, shall be settled by final and binding arbitration administered by the American Arbitration Association under its Commercial Dispute Resolution Procedures and Optional Appellate Rules (the "Rules"). Such arbitration shall take place in New York City before a single arbitrator selected pursuant to such Rules. The arbitrators’ award shall include an allocation of arbitration fees, expenses and compensation, and may include an award to the prevailing party of its attorney’s fees, costs and expenses in connection with the arbitration. Any appeal shall take place in New York City as provided in the Optional Appellate Rules.
(ii) Any proceedings ancillary to the arbitration, including without limitation any action or proceeding to enforce the arbitrator’s award or judgment entered thereon, shall be brought in the Supreme Court of the State of New York, County of New York or the United States District Court for the Southern District of New York, the courts having exclusive jurisdiction thereof, each party hereby consenting to the exclusive jurisdiction of such courts over it and waiving, to the fullest extent permitted by law, any defense or objection relating to in personam jurisdiction, venue or convenience of the forum. All matters arising in any action to enforce an arbitral award shall be determined in accordance with the law and practice of such forum courts.
2. Exclusivity. The rights of the parties under this Section, Section 20(d)(ii) and Section 20(l) shall be the exclusive dispute resolution mechanisms with respect to any claim or controversy under this Agreement.
1. No Joint and Several Liability. Each Carrier Exhibit and each Equipment Exhibit constitutes a separate contract with the ORBCOMM affiliate identified thereon incorporating the terms and conditions of this MWAPA. Nothing in this Agreement or any Carrier Exhibit or Equipment Exhibit shall be construed to make any ORBCOMM affiliate liable, under a theory of joint and several liability or otherwise, for any claim arising out of or relating to a Carrier Exhibit or Equipment Exhibit to which that ORBCOMM affiliate is not a named party.
2. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon receipt if delivered personally or by facsimile (answer back received), one business day after being sent by express mail or courier, or three business days after being sent by registered or certified mail, return receipt requested, postage prepaid, to the parties at the following addresses (or such other address for a party as shall be specified by like notice, provided that such notice shall be effective only upon receipt thereof):
ORBCOMM Networks, LLC
395 W. Passaic St., Ste. 325
Rochelle Park, NJ 07662
Telephone: +1 (703) 433-6400
Facsimile: +1 (703) 433-6400
Attention: CFO and General Counsel
2 Second Avenue
South Australia 5095
Telephone: +61 (0)8 8305 0442
Attention: Jack Sudarev
3. Binding Effect; Assignment. This Agreement shall be binding upon the parties and their permitted successors and assigns. Neither this Agreement nor any interests or obligations of Application Provider, including, but not limited to, Application Provider’s Subscriber accounts, shall be assigned or transferred (by operation of law or otherwise) to any Person without the prior written consent of ORBCOMM. ORBCOMM may, without the consent of Application Provider, assign or delegate any of its interest or obligations hereunder.
4. Entire Agreement; Amendment.
1. This Agreement and all attachments (which are hereby made part of this Agreement) contain the entire understanding between Application Provider and ORBCOMM and supersede all prior written and oral understandings relating to the subject matter hereof (including any prior non-disclosure or confidentiality agreement signed by the parties). No representations, warranties, indemnities, agreements or understandings not contained herein shall be valid or effective unless agreed to in writing and signed by both parties.
2. THE TERMS AND CONDITIONS ON WHICH SERVICE IS OFFERRED OR PROVIDED MAY BE MODIFIED BY ORBCOMM AT ANY TIME AS PERMITTED OR REQUIRED BY LAW. FOR OTHER THAN CARRIER TARIFFS GOVERNED BY NOTICE REQUIREMENTS IMPOSED BY GOVERNMENTAL AUTHORITY ORBCOMM SHALL PROVIDE APPLICATION PROVIDER WITH AT LEAST FOURTEEN (14) DAYS PRIOR NOTICE OF ANY CHANGES THAT WOULD MATERIALLY AND ADVERSELY AFFECT APPLICATION PROVIDER SO THAT APPLICATION PROVIDER MAY ELECT TO DISCONTINUE SERVICE AND AVOID THE EFFECTS OF THE CHANGES. ORBCOMM NOTICE MAY BE FURNISHED BY ANY METHOD OF NOTICE AUTHORIZED IN THIS AGREEMENT, WHICH INCLUDES POSTING ON ORBCOMM’S WEBSITE WITHOUT OTHER NOTICE. APPLICATION PROVIDER SHALL BE BOUND BY CHANGES AFTER THEY BECOME EFFECTIVE UNLESS APPLICATION PROVIDER SOONER ELECTS BY WRITTEN NOTICE TO ORBCOMM TO TERMINATE THIS AGREEMENT OR THE AFFECTED CARRIER EXHIBIT OR EQUIPMENT EXHIBIT.
3. Except as provided in the foregoing subclause (ii), any modification or amendment of this Agreement must be in writing and signed by both parties. Both parties agree and acknowledge that this Agreement shall be governed solely by the terms and conditions contained herein, and the terms and conditions of any purchase order, task order or similar document (collectively, an "Order") shall be without any force and effect and shall not amend, modify, add to, or delete the terms or conditions of this Agreement.
5. 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 State of New York, without giving effect to the conflict or choice of law provisions thereof. Neither party may bring any action for a claim under this Agreement later than one year after the termination of this Agreement; provided that claims under any provision of this Agreement that survives termination of this Agreement may be brought within one year of the later of the occurrence of the event giving rise to the claim and actual knowledge thereof by the party asserting such claim.
1. Solely for the purposes of Section 19(a)(ii) and 20(l) of this Agreement or in the event the parties waive their arbitration rights under Section 19(a), each of the parties by its execution hereof (A) hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, for the purpose of any suit, action or other proceeding arising out of, in connection with or related to this Agreement including without limitation any disputes as to the formation or subject matter hereof and (B) hereby waives to the extent not prohibited by law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such proceeding, any claim that is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such proceeding brought in one of the above-named courts is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court; provided that with respect to any action or proceeding by ORBCOMM seeking damages for a default under Section 17(a), ORBCOMM may at its option proceed either in one of the above named courts or pursuant to the dispute resolution provisions specified in Section 19. Application Provider hereby consents to service of process in any such proceeding in any manner permitted by the laws of the state of New York and agrees that service of process by international registered mail, return receipt requested, at the address specified in or pursuant to Section 20(b) hereof is reasonably calculated to give actual notice. Application Provider agrees that, at ORBCOMM’s request, it will appoint an agent for service of process within the State of New York.
6. Waiver. It is understood and agreed that no failure or delay by either ORBCOMM or Application Provider in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any other right, power or privilege hereunder. No waiver of any terms or conditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by both of the parties hereto.
7. Severability. If any part of this Agreement shall be held invalid or unenforceable, such determination shall not affect the validity or enforceability of any remaining portion, which shall remain in force and effect as if this Agreement had been executed with the invalid or unenforceable portion thereof eliminated.
8. Headings; Section Reference. Headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
9. Costs and Expenses. Except as otherwise specifically provided herein, each party shall bear all costs and expenses incurred in the performance by it of its obligations hereunder.
10. Independent Parties. Each party is an independent contractor. Except as provided in this Agreement, neither party shall have the right, power or authority to act or to create any obligation, express or implied, on behalf of the other party. All sales by Application Provider shall be in its own name and for its own account. No provision of this Agreement shall be construed as vesting in Application Provider any control over or interest in the Facilities or operations of ORBCOMM or the ORBCOMM Network. Application Provider shall not represent itself as a federal or state certified licensee of the ORBCOMM Network. Personnel employed or contracted by a party to this Agreement to perform services for such party are not employees of the other party hereto, and such employing or contracting party assumes full responsibility for their acts, daily direction and control. All such personnel of each party hereto shall be at the sole expense of such party, and such party shall be solely responsible for any and all employment benefits and withholding issues including, but not limited to, worker's compensation, disability benefits, unemployment insurance or withholding income taxes and social security benefits for such personnel.
11. Tariffs. In the event that any Service or the charges made therefor are currently subject, or at any time become subject, to any tariff or other form of rate regulation imposed by a Governmental Authority, then the terms and conditions of this Agreement, including the prices set forth in the Pricing Rate Schedule, shall be deemed amended to conform to any conflicting terms and conditions in effect under such regulation or tariff. All non-conflicting terms and conditions of this Agreement shall remain valid and in full force and effect.
12. Injunctive Relief. Application Provider acknowledges that the ORBCOMM Network and Service provided pursuant to this Agreement are unique and recognizes and affirms that in the event of any breach of this Agreement by it, money damages may not be adequate and the other party may have no adequate remedy pursuant to the dispute resolution provisions specified in Section 19. Accordingly, the dispute resolution provisions specified in Section 19 are not exclusive of ORBCOMM’s right to injunctive relief to the extent permitted by applicable law. For purposes of this Section only, the judicial forums set forth in Section 19 and 20 shall not be the exclusive forums in which ORBCOMM can seek such injunctive relief.
13. Force Majeure. Neither party shall be held responsible for failure or delay in performance or delivery if such failure or delay is the result of an act of God, the public enemy, embargo, governmental act (other than the failure to obtain Permits from a Governmental Authority), fire, accident, war, riot, strikes, inclement weather or other cause of a similar nature that is beyond the control of the parties. In the event of such occurrence, this Agreement shall be amended by mutual agreement to reflect an extension in the period of performance and/or time of delivery. Failure to agree on an equitable extension shall be considered a claim or controversy and resolved in accordance with Section 19.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written.