Exhibit 10.1
Mobile Satellite Ventures LP/Cadence LLC
SERVICES AGREEMENT
THIS AGREEMENT, made as of May 26, 2006, by and between Mobile
Satellite
Ventures LP (hereinafter called "MSV"), a Delaware limited
partnership with
offices at 10802 Parkridge Boulevard, Reston, Virginia 20191-5416,
U.S.A., and
Cadence LLC, with offices at 8200 S. Quebec #227, Centennial,
Colorado, 80112
(hereinafter called "CADENCE").
WHEREAS, MSV desires to retain CADENCE to provide services as
described in this
Agreement (the "Services"); and
WHEREAS, CADENCE has expertise and experience in the areas in which
it is
retained to perform the Services and represents that it is capable
of
accomplishing such Services, and desires to perform such Services
for MSV;
Now therefore, in consideration of the mutual covenants contained
herein, and
for other good and valuable consideration, the sufficiency of which
is hereby
acknowledged by the parties, it is agreed as follows:
Section 1 - Services
(a) Services:
(1) CADENCE shall perform the Services
described in the Statement of Work
attached to this Agreement as Annex A, which is hereby incorporated
in and made
a part of this Agreement. Additional or changed statements of work
may be
entered into from time to time by MSV and CADENCE, provided that
such additions
or changes shall be in writing. CADENCE shall perform the Services
in
coordination with the person designated in Annex A or such other
persons as may
be designated by MSV from time to time. MSV reserves the right to
approve any
personnel assigned by CADENCE to perform Services under this
Agreement.
(2) CADENCE agrees to comply at all times
with all security procedures in
effect at MSV's premises and externally for materials and
information belonging
to MSV or for which MSV is responsible.
(b) Changes: MSV reserves the right to change, including increasing
or reducing,
or terminate the Services to be performed under this Agreement at
any time. If
the services are changed, the charges shown in Annex A will be
revised as
appropriate on a pro rata basis. Changes will be as mutually agreed
upon by MSV
and CADENCE.
(c) Time of the essence: CADENCE understands that prompt
performance of all
Service hereunder is required by MSV in order for MSV to meet its
commitments
and that time is of the essence.
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Section 2 - No Conflict of Interest
CADENCE represents and warrants to MSV that it is now under no
contract or
obligation, nor will CADENCE execute a contract or agreement or
assume an
obligation during the term of this Agreement that will in any
manner interfere
or represent a conflict of interest with the performance of
Services by CADENCE
or the performance by CADENCE of its other duties under the terms
and conditions
of this Agreement.
Section 3 - Term and Termination
(a) Term: The term of services to be performed under this Agreement
shall be as
set forth in the Statement of Work attached as Annex A, subject to
the
provisions of paragraph (b) of this section 3. At the end of the
stated term,
this Agreement shall terminate without any requirement of notice
unless extended
in writing by mutual agreement of the parties, subject to the
provisions of
section 9 of this Agreement. This Agreement shall apply to Services
performed by
CADENCE for MSV pursuant to additional Statements of Work agreed to
in writing
by the parties.
(b) Termination:
(1) At will: MSV may terminate this
Agreement at any time upon ten (10)
days' written notice to CADENCE and may reduce or terminate the
Services to be
performed during the time period between the notice date and
effective date of
termination, as provided in section 1(b) of this Agreement. In the
event of such
termination, MSV shall pay CADENCE for all work performed by
CADENCE to the date
of termination and accepted by MSV and for allowable expenses
incurred to the
date of termination.
(2) Default: MSV may terminate this
Agreement in the event of a breach by
CADENCE of any provision of this Agreement, or if CADENCE becomes
the subject of
voluntary or involuntary bankruptcy, insolvency, reorganization or
liquidation
proceedings, makes an assignment for the benefit of creditors or
admits in
writing its failure to pay debts as they become due. In the event
of a
termination for default, MSV shall be entitled to all direct
damages incurred by
it as a result of the default, as well as to any other rights and
remedies
available to MSV at law or in equity.
(c) After termination: Upon termination of this Agreement, for any
cause,
CADENCE shall without additional cost to MSV, return to MSV in an
orderly and
expeditious manner, all data, records, documentation, and other
property
belonging to MSV.
Section 4 - Charges and Payment
(a) In consideration of the performance of Services under this
Agreement, MSV
agrees to retain CADENCE with at *** deposit or ******* and shall
then pay
CADENCE at a rate of **** per hour on a time and materials
Not-To-Exceed ("NTE")
basis.
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(b) In addition to the rates shown in Annex A, MSV shall reimburse
CADENCE for
actual out-of-pocket expenses incurred in the performance of this
Agreement. All
such expenses shall be paid in accordance with MSV's then-current
policy
regarding travel and expenses.
(c) CADENCE shall invoice MSV every two weeks every two weeks and
MSV shall pay
CADENCE's invoices within thirty (30) days of receipt. Invoices
must include a
breakdown of the hours expended by project task and receipts for
all
out-of-pocket expenses.
(d) MSV will apply a portion of the *********** prepaid deposit to
each invoice
received during performance of this agreement (the "Credit
Amount"). However, in
no event will the Credit Amount exceed more than *** of any
individual invoice
unless it is the final invoice. All prepaid deposit fees remaining
at the end of
the project will be applied to the final invoice.
Section 5 - Warranty
CADENCE warrants that all Services performed and/or products
delivered, as the
case may be, under this Agreement will comply with the applicable
statement of
work or specification and will be performed in accordance with the
best industry
practices and standards. CADENCE will reperform any Service or
repair or
replace, at MSV's direction, any product or deliverable which does
not meet this
warranty. Specific warranty periods and remedies for Services or
products which
do not meet the warranty shall be as set forth in the applicable
Statement of
Work.
Section 6 - Ownership of Work Product; Disclosure
(a) Ownership: CADENCE acknowledges that it is hired to invent for
MSV, that any
works created which qualify as works made for hire under applicable
copyright
law shall be considered works made for hire, and that MSV shall own
all right,
title and interest in and to all proprietary rights in all work
product or other
materials produced by CADENCE in the performance of this Agreement.
If a work
does not qualify as a work made for hire under applicable copyright
law, or if
MSV does not own all right, title, and interest to other material,
CADENCE
hereby grants, conveys, assigns and transfers to MSV any and all
proprietary
rights in and to such works and materials, including but not
limited to
copyrights, patents, trademarks, and trade secrets. During
performance of this
Agreement, CADENCE shall assure that all of its employees, and/or
subcontractors
who are involved in the performance of work under this Agreement
have executed
agreements with CADENCE providing that all work performed by such
employees,
CADENCE's, and/or subcontractors relative to the work performed
hereunder is
subject to the provisions of this section 6.
(b) Licenses to certain materials: If the performance of Services
under this
Agreement requires the provision or use of any proprietary computer
programs or
other materials of CADENCE or of CADENCE's suppliers or
subcontractors, CADENCE
shall specifically identify such programs or materials in writing
to MSV and
shall grant to or obtain for MSV a perpetual, nonexclusive, license
or
sublicense to use such programs or materials.
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(1) Licenses granted or obtained pursuant
to this paragraph (b) shall be
provided at no additional cost to MSV and shall include where
necessary in MSV's
sole judgment the right for MSV's customers, resellers, agents,
employees, or
others to use the programs or materials.
(2) CADENCE represents and warrants that
it has full right, power, and
authority to use and disclose to MSV the programs and materials and
to grant or
obtain the licenses provided for under this paragraph (b). At the
request of
MSV, CADENCE shall provide MSV with all documentation supporting
this warranty,
including but not limited to copies of licenses granted by
CADENCE's suppliers
or subcontractors.
(c) Disclosure: (1) CADENCE agrees to disclose to MSV all ideas,
works, and
inventions, whether or not subject to patent or copyright
protection, made,
conceived, or actually or constructively reduced to practice by
CADENCE during
the period of this Agreement, whether solely or jointly with
others, which refer
to or result from the Services performed by CADENCE pursuant to
this Agreement
or are obtained by CADENCE from any information in discussions and
meetings with
employees of MSV or with its subsidiaries, affiliated or related
companies, or
with any of MSV's current or prospective customers.
(2) Upon completion of Services performed
under this Agreement, or as
otherwise specified in an applicable Statement of Work, CADENCE
shall deliver to
MSV all copies of all software and of all other documents of any
kind produced
by CADENCE in the performance of Services under this Agreement.
(d) Assistance to MSV: CADENCE further hereby assigns and agrees to
execute any
and all documents necessary to assign said ideas and inventions to
MSV at MSV's
expense and to assist MSV in every proper way to protect such ideas
and
inventions, including but not limited to signing patent or
copyright
applications, oaths, and assignments in favor of MSV relating to
such ideas and
inventions, both in the United States and in any and all foreign
countries.
Section 7 - Nondisclosure Agreement
The Nondisclosure Agreement between the parties, dated
contemporaneously with
this Services Agreement, and set forth in Annex B, is hereby made a
part of this
Agreement.
Section 8 - Indemnification and Insurance
(a) CADENCE shall indemnify and hold MSV harmless from and against
all loss,
liability, damage and expense related to claims arising from --
(1) Personal injury and damage to personal
property caused by the acts or
omissions of CADENCE; or
(2) Claims, brought against MSV by a third
party, that work performed by
CADENCE and/or materials supplied by CADENCE under this Agreement
infringes upon
any patent, copyright, trade secret, or other intellectual property
right of a
third person.
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(b) CADENCE shall carry liability insurance, including but not
limited to
Workers' Compensation as required by law, business automobile
insurance, and
general liability insurance. CADENCE will provide MSV upon request
with
certificates of insurance.
Section 9 - Survival of Terms and Equitable Relief
(a) Survival of terms: The provisions that by their nature, are
intended to
survive the expiration or termination of this Agreement, including
but not
limited to those contained in sections 5, 6, and 7 of this
Agreement, and all of
the provisions in the Nondisclosure Agreement, shall survive the
expiration or
termination of this Agreement or any amendments or extensions
hereof.
(b) Equitable relief: CADENCE agrees that MSV's remedy at law for
any breach or
threatened breach by CADENCE of the provisions of section 6 or of
the
Nondisclosure Agreement, would be inadequate and therefore agrees
that MSV shall
be entitled to injunctive relief in the event of any such breach or
threatened
breach.
Section 10 - Status of Parties
CADENCE, and its employees who perform Services under this
Agreement, shall be
deemed at all times to be an independent contractor and, as such,
during the
term of this Agreement will not be eligible for any of MSV's or any
affiliated
company's employee benefits, including but not limited to Group
Insurance,
separation or vacation pay, or participation in any pension or
stock option
plan, and MSV shall not make deductions or withhold funds from
compensation paid
hereunder for the purpose of Social Security, Federal, State, or
local income
tax. Nothing contained in this Agreement shall be construed as
creating the
relation of employer and employee between the parties during the
term of this
Agreement. CADENCE shall not act or be authorized to act as MSV's
agent in any
matter or make any representations on behalf of MSV except as
expressly
authorized in writing by MSV.
Section 11 - Force Majeure
Neither party shall be in default or otherwise liable for any delay
in or
failure of its performance under this Agreement where such delay or
failure
arises by reason of any Act of God, or of any government or any
governmental
body, acts of the common enemy, the elements, strikes or labor
disputes, or
other similar or dissimilar cause beyond the control of such party,
provided,
however, that the delay or failure in performance could not have
reasonably been
foreseen or provided against; and provided further that each party
exercises
such diligence as the circumstances may require.
Section 12 - Miscellaneous
(a) Notices: (1) All notices which are required or permitted to be
given under
this Agreement shall be sent postage prepaid, by certified mail, by
courier such
as United Parcel Service, or by facsimile, to the addresses set
forth below.
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If to MSV:
Mobile Satellite Ventures LP
10802 Parkridge Boulevard
Reston, VA 20191-5416
Attention: President and COO
Facsimile: 703/390-2770
With a copy
to:
Mobile Satellite Ventures LP
1601 Telesat Court
Ottawa, Ontario K1B 1B9
Attention: Legal
Facsimile: 613-742-4113
Invoices shall be
sent to the above address, marked
"ATTN:
Accounts Payable."
If to CADENCE:
Cadence LLC
8200 S Quebec #227
Centennial, Colorado
Attention: Mr. Pat Burke, President
Facsimile: (413) 502 - 9811
(2) The parties may, by written notice,
designate other addresses and/or
facsimile numbers for receipt of notices under this
