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TEXT OMITTED
AND FILED SEPARATELY CONFIDENTIAL TREATMENT REQUESTED UNDER 17
C.F.R. SECTIONS 200.80(b)(4) and 230.406
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This Services Agreement (this
“Agreement”) is entered into this 3rd day of April,
2009 by and among ORBCOMM Inc., a Delaware corporation and ORBCOMM
LLC, a Delaware limited liability company each with its executive
offices located at 2115 Linwood Avenue, Suite 100, Fort Lee,
NJ 07024 (collectively, “ORBCOMM”), and GE Asset
Intelligence, LLC (“GEAI”), a Delaware limited
liability company, with offices located at 200 Martingale Road,
Suite 1100, Schaumburg, IL 60173 (GEAI and ORBCOMM,
collectively, the “Parties”).
WHEREAS , ORBCOMM owns and operates a system that
provides low-earth-orbit-satellite-based data communication
services and terrestrial-based cellular communication services
through reseller agreements with major cellular wireless providers
and may in the future as set forth in this Agreement provide
communication services through other third party communication
networks (collectively, the “ORBCOMM
System”).
WHEREAS , GEAI operates an asset tracking and monitoring
business (the “GEAI Business”) under which among other
things it provides to its customers (“Subscribers”)
telematics and machine-to-machine communications between
Subscribers’ communicators sold or managed by or on behalf of
the GEAI Business (“Subscriber Communicators”) and the
communications centers of the GEAI Business or customers of the
GEAI Business (“GEAI Communications
Centers”).
WHEREAS , ORBCOMM LLC and GEAI are parties to that
certain International Value Added Reseller Agreement dated
March 14, 2003, as amended (as further amended hereby, the
“IVAR”) with respect to the provision of
low-earth-orbit-satellite-based data communication services for
communications between Subscriber Communicators and the GEAI
Communications Centers (each communications service between
Subscriber Communicators and the GEAI Communications Center, a
“Communications Link”).
WHEREAS , this Agreement sets forth the terms upon which
GEAI and ORBCOMM will deal with activation of Subscriber
Communicators for purposes of Communications Links during the
period of January 1, 2009 through December 31, 2013 (the
period from January 1, 2009 through December 31, 2013 or
the earlier termination pursuant to the terms of this Agreement,
the “Term”).
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 agree as follows:
SECTION 1
TELEMATICS AIRTIME SERVICES PROVIDER
(a) ORBCOMM
Sole Supplier . During the Term, GEAI shall activate, and
provide telematics and machine-to-machine data communications, on
all Subscriber Communicators in the United States, Canada and
Mexico for purposes of Communications Links, whether satellite,
cellular or dual mode (cellular plus satellite), exclusively on the
ORBCOMM System, subject to the further terms of this Agreement.
(For avoidance of doubt, Communications Links do not include
‘WiFi” or other local area network connections
maintained by Subscribers between their Subscriber Communicators
and such Subscribers’ systems or internet connections between
GEAI and its Subscribers.)
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(i)
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With respect to
low-earth-orbit-satellite communications provided under the IVAR,
ORBCOMM shall provide service to GEAI with respect to such
Communications Link in accordance with the terms of the IVAR, whose
term is hereby extended to December 31, 2013 and otherwise
remains in full force and effect, provided that (a) the term
“Application” as used in the IVAR shall include but not
be limited to the low-earth-orbit-satellite-enabled products
currently offered by the GEAI Business that utilize the ORBCOMM
System and any other such low-earth-orbit-satellite-enabled product
developed for the purpose of tracking and/or monitoring assets;
provided, however that any such other product shall be tested prior
to Provisioning (as defined in the IVAR) to ensure that the product
does not cause an Abuse of the ORBCOMM System (as defined in the
IVAR) and such testing shall be conducted pursuant to a testing
protocol agreed to by the Parties, such agreement not to be
unreasonably withheld, and (b) Section 3(g) of the IVAR
is superseded by the terms of this Agreement.
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(ii)
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With respect to cellular
communications or satellite services other than as provided by the
IVAR, ORBCOMM shall provide services to GEAI (as a reseller) and
GEAI shall activate such service with respect to such
Communications Link on the ORBCOMM System, subject to Section 1(c)
below, with respect to newly activated Subscriber Communicators and
existing Subscriber Communicators, in each case subject to the
further terms of this Agreement.
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(b) NON-IVAR
ORBCOMM Services . The following provisions under this SECTION
1(b) shall apply only with respect to cellular communications or
satellite services other than as provided by the IVAR:
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(i)
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During the Term, ORBCOMM, at its
option upon not less than ninety (90) days prior written
notice (a “Conversion Notice”) to GEAI, may elect to
manage and provide service to GEAI (as a reseller) on the ORBCOMM
System, for all or any portion of the Subscriber Communicators,
whether currently installed or newly activated, for purposes of
Communications Links receiving data service through [* * *], other
cellular service through any other network and/or satellite service
through [* * *] or any other network, in each case subject to the
further terms of this Agreement including but not limited to
SECTION 1(c) below, provided that, in each such case, ORBCOMM pays
or reimburses GEAI for all costs of GEAI of such transition,
including but not limited to any capitalized expenditures that are
written off as a result of such transition that have been
communicated to ORBCOMM in writing prior to such transition. For
avoidance of doubt, a Conversion Notice must be given with respect
to a transition of any services (other than a transition of
services initiated by GEAI) provided to GEAI for Subscriber
Communicators through the ORBCOMM System from one carrier to
another or from one technology, standard, type of service or set of
compatibilities to another.
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(ii)
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Notwithstanding SECTION 1(b)(i)
above, ORBCOMM shall be deemed to have given a Conversion Notice to
GEAI to elect to manage and provide service to GEAI (as a reseller)
on the ORBCOMM System, for all of the Subscriber Communicators
using [* * *] data services immediately upon expiration of
GEAI’s current agreement with [* * *] (the “Current
GEAI-[* * *] Agreement”), which shall be on or about
June 17, 2009, subject to the further terms of this Agreement
including but not limited to SECTION 1(c) below, provided that if
such transition occurs ORBCOMM pays or reimburses GEAI for all out
of pocket costs of such transition that have been communicated to
ORBCOMM in writing prior to such transition, provided, further
however, that ORBCOMM shall not be required to reimburse GEAI with
respect to shortfall fees that may come due under the Current
GEAI-[* * *] Agreement or any capitalized expenditures that are
written off as a result of such transition (the “Initial [* *
*] Conversion”). Notwithstanding anything to the contrary in
this Agreement, except as provided in Section 1(b)(iii) below,
GEAI shall not be required to activate or transfer to the ORBCOMM
System any cellular-based Subscriber Communicators capable of using
the [* * *] data services prior to such expiration of the Current
GEAI-[* * *] Agreement, and from and after such expiration, in the
event that such transition occurs, ORBCOMM will as a reseller of [*
* *] data services provide service to GEAI (as a reseller) for
Subscriber Communicators that GEAI chooses to activate on the [* *
*] data services.
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(iii)
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The
Initial [* * *] Conversation may occur at a date earlier than
specified in clause (ii) above mutually agreed by the Parties,
provided that (A) the shortfall fees under the Current GEAI [*
* *] Agreement are waived (GEAI not having any requirement to
obtain such waiver) or ORBCOMM in its discretion pays such fees for
the benefit of GEAI and (B) GEAI incurs no other costs with
respect to such transition (other than any capitalized expenditures
that are written off as a result of such transition) that would not
be incurred by it with respect to a transition on the date
specified in clause (ii) above.
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(c)
Transition . Upon the delivery of a Conversion Notice, the
Parties shall consult concerning the conditions, costs, technical
requirements and the exact date of the transition of the changes
contemplated by such Conversion Notice, with the intent that the
conditions, costs and technical requirements, and the exact date of
the transition, be established in accordance with the terms of this
Agreement within sixty (60) days after the date of such
Conversion Notice, provided that with respect to the Initial [* *
*] Conversion all such consultations shall be completed by
May 1, 2009. If following any such consultation, ORBCOMM does
not agree as to the reimbursable costs or the other conditions
required to be satisfied by the terms of this Agreement as a result
of the transition contemplated by a Conversion Notice, then such
transition shall not occur.
(d)
Conditions to GEAI’s Obligation to Use the ORBCOMM
System . GEAI shall not be obligated to use the ORBCOMM System
if and to the extent that:
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(i)
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Use
of the ORBCOMM System would require the replacement or alteration
(other than by modifications required as a result of such
replacement or alteration delivered over the air at the expense of
ORBCOMM) of Subscriber Communicators installed at the time of the
applicable Conversion Notice with Subscribers or would require, or
indirectly could reasonably be expected to cause, disruption in
services provided to Subscribers unacceptable, in GEAI’s
reasonable judgment, to them;
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(ii)
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Use
of the ORBCOMM System would render obsolete inventory of
communicators held or on order by GEAI at the date of the
applicable Conversion Notice which inventory is not otherwise
obsolete (other than such inventory as is purchased by ORBCOMM at
its sole discretion at GEAI’s book value plus all direct out
of pocket costs arising from such purchase);
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(iii)
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Use
of the ORBCOMM System would require or cause the payment of early
termination, shortfall or other fees to other providers of
communications services (other than such as are reimbursed in full
by ORBCOMM at its sole discretion and other than in connection with
the Initial [* * *] Conversion, shortfall fees
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(except to the
extent conversion occurs under SECTION 1(b)(iii) above) that may be
due under the Current GEAI-[* * *] Agreement) or would cause a
breach of agreements with other providers of communications
services;
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(iv)
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The
applicable service of the ORBCOMM System to provide the
Communications Link does not have the necessary regulatory
approvals to provide such service without additional cost to GEAI
(other than such costs which ORBCOMM in its sole discretion
reimburses in full);
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(v)
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Prices to GEAI for the applicable
services on the ORBCOMM System are not competitive with prices for
similar services provided by other suppliers (including [* * *] and
[* * *]) available to GEAI for a similar or shorter term, provided
that (A) this clause (v) shall not apply to the Initial
[* * *] Conversion, (B) if such services are then provided to
GEAI by the ORBCOMM System, prior to switching to such other
services, GEAI shall give ORBCOMM thirty (30) days written
notice, during which period ORBCOMM will have the opportunity to
offer to GEAI a
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