International Value Added Reseller Agreement

EXHIBIT 10.9.1


*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4)
and 230.406


INTERNATIONAL VALUE ADDED RESELLER AGREEMENT


This International Value Added Reseller Agreement ("Agreement") is entered into this 14th day of March, 2003 by and between ORBCOMM LLC, a Delaware limited liability company ("ORBCOMM"), with its offices located at 21700 Atlantic Boulevard, Dulles, Virginia 20166, and Transport International Pool, Inc., a Pennsylvania corporation ("Reseller"), with its offices located at 426 West Lancaster Avenue, Devon, PA 19333.


WITNESSETH:


WHEREAS, ORBCOMM operates a system that provides low-Earth orbit satellite-based data communication services; and


WHEREAS, Reseller desires to have the right to market and sell access to and use of the ORBCOMM System in the Territory solely with respect to the Application (as defined herein below) in accordance with the terms of this Agreement.


NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:


SECTION 1 DEFINITIONS


Unless otherwise specified herein, the capitalized terms used in this Agreement shall have the meaning set forth in Exhibit A attached hereto.


SECTION 2 TERM OF AGREEMENT


Subject to the provisions set forth herein, the term of this Agreement shall commence on the Effective Date and continue for a period of three (3) years (hereinafter the "Initial Term"). This Agreement may be renewed by Reseller at its option for up to two (2) further terms of three (3) years each (together with the Initial Term, the "Term") provided Reseller gives notice to ORBCOMM in writing of its decision to extend the Agreement at least ninety (90) days prior to the expiration of the then-current Term.


SECTION 3 PURCHASE OF SERVICE; NON-EXCLUSIVE LICENSE


(a) Purchase and Sale. In the event Reseller elects to purchase or resell access to and use of the ORBCOMM System, ORBCOMM hereby agrees to sell to Reseller, and Reseller hereby agrees to purchase, such access and use pursuant to the terms of this Agreement.


(b) Non-Exclusive License to Promote and Resell. ORBCOMM hereby grants to Reseller a non-exclusive license to promote, solicit, market and resell access to and use of the ORBCOMM System in the Territory for use with the Application, in accordance with the terms of this Agreement. Any purported resale by Reseller other than pursuant to the terms and conditions of this Agreement or outside of the Territory shall be null and void.


(c) Sublicense. Reseller may sublicense Agents and Affiliates to promote, solicit and market access to and use of the ORBCOMM System on Reseller's behalf, provided that such Agents and Affiliates agree to be bound by the terms of this Agreement. A Subscriber shall, in any event, purchase and receive services directly from Reseller and not from any Agent or Affiliate. The parties agree that any GE Business or GE Affiliate may, at its option, become a Reseller pursuant to the terms of this Agreement, provided such GE Business or GE Affiliate agrees to be bound by the terms of this Agreement.


(d) Demonstration Units. During the Initial Term of this Agreement, Reseller may provision up to one hundred (100) Subscriber Communicators for demonstration, testing and System monitoring ("Demonstration Units"). During the remainder of the Term of this Agreement, Reseller shall be permitted to utilize up to twenty five (25) Demonstration Units. Reseller shall be solely responsible for all costs associated with obtaining the Demonstration Units from whatever source. Reseller shall identify for ORBCOMM which Subscriber Communicators are being used as Demonstration Units and the time period during which they will be used. Demonstration Units provided to Reseller pursuant this Section shall not be subject to any fees, including but not limited to Byte Charges or Provisioning Charges.


(e) Abuse and Fraudulent Use. Access to the ORBCOMM System is furnished subject to the condition that there be no Abuse of the ORBCOMM System by Reseller, its Agents, its Subscribers or any other Person associated therewith. Reseller shall promptly advise ORBCOMM in the event Reseller has actual knowledge of Abuse of the ORBCOMM System by any Agent, Subscriber or any other Person. In the event ORBCOMM is advised or in good faith reasonably determines that Reseller, any Agent, Subscriber or other Person, is engaging in Abuse of the ORBCOMM System, ORBCOMM shall have the right, after notification and consultation with Reseller (provided ORBCOMM can reasonably provide such notification and engage in such consultation), to immediately suspend that particular Reseller's, Agent's, Subscriber's or other Person's access to and use of the ORBCOMM System, or terminate the particular Subscriber Communicator being used during the Abuse of the ORBCOMM System. During such suspension or termination, all Usage Charges for each Subscriber Communicator affected shall be suspended as well.


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(f) Type Approved Modems. For use with the ORBCOMM System, Reseller shall be responsible for ensuring that only Subscriber Communicators incorporating Type Approved modems are used, sold, or otherwise distributed by it. ORBCOMM shall be entitled to immediately suspend or terminate any Subscriber Communicator's access to the ORBCOMM System if ORBCOMM becomes aware the Subscriber Communicator is not using a Type Approved modem. During such suspension or termination, all Usage Charges for each Subscriber Communicator affected shall be suspended as well.


(g) Non-Exclusive Service. The parties agree that Reseller is under no obligation to purchase or resell any access to or use of the ORBCOMM Services or the ORBCOMM System. The parties further agree that Reseller may purchase or resell low-Earth orbit satellite-based data communication services, or other data communication services, provided by a Person other than ORBCOMM.


SECTION 4 FEES AND PAYMENT TERMS


(a) Fees. Reseller shall pay to ORBCOMM (or its designee) the Billing Cycle Amount for each Billing Cycle as provided in this Section. For clarification, the Billing Cycle is currently each calendar month and the Usage Fees are computed based on such. In the event that the Billing Cycle is changed pursuant to the terms of this Agreement, Usage Fees set forth in Exhibit C hereof shall be adjusted proportionately to reflect such change.


(b) Taxes. The charges as set forth herein do not include applicable taxes. If ORBCOMM is required to pay any federal, state, county, local, or value added tax, or any other governmental agency taxes, assessments, fees or charges of any nature based on the services provided under this agreement, such taxes or fees must be set forth on the invoice for the applicable Billing Cycle. Otherwise, such charges shall be the responsibility of ORBCOMM. Nothing in this Agreement shall require Reseller to pay any franchise, corporate, partnership, succession, transfer, income, excise, profits or income tax of ORBCOMM. No other charges to Reseller shall be allowed unless agreed to in writing by Reseller.


(c) Payments. Reseller shall be solely responsible for (i) billings to and collections from its Subscribers and (ii) all amounts due to ORBCOMM pursuant to this Agreement for all Subscriber Communicators under Reseller's account regardless of whether or not Reseller bills and/or collects from its Subscribers.


(d) Currency. All amounts to be paid by Reseller pursuant to this Section shall be paid in full in U.S. Dollars within forty-five (45) days after Reseller's receipt of a valid invoice in accordance with Reseller's standard accounts payable practices.


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(e) Method of Payment. All amounts to be paid by Reseller pursuant to this Section may be paid by check, wire transfer or direct deposit. ORBCOMM shall include any specific wire transfer or direct deposit account information on its invoice.


(f) [***]


SECTION 5 RESPONSIBILITIES OF RESELLER


(a) Provisioning. Reseller shall notify ORBCOMM of each Subscriber Communicator addition, deletion, suspension or account transfer, each Subscriber Communicator Address change and/or any other change in the service requested by Subscriber (hereinafter the "Provisioning Changes"). ORBCOMM shall effect such Provisioning Changes as soon as practicable but in no case more than three (3) business days following receipt of notice from Reseller. Reseller shall be responsible for all charges incurred from the date of any Subscriber addition through the date Reseller notifies ORBCOMM of such Subscriber's Provisioning Changes.


(b) Sales Forecast. Reseller shall provide a sales forecast on the basis of the Reseller's good faith estimate of projected sales and on the basis of reasonable, good faith assumptions.


(c) Representations and Warranties. Reseller shall not, and shall procure that its Agents shall not, make any representation, warranty, indemnity or similar claim to any other Person concerning the ORBCOMM System or ORBCOMM Services unless it is consistent in all material respects with the written documentation provided by ORBCOMM to Reseller, as such information exists at the time the representation, warranty, indemnify or similar claim is made, and this Agreement. In the event of a conflict between the terms of the written documentation provided by ORBCOMM and this Agreement, the terms of this Agreement shall prevail.


(d) Support and Training. With ORBCOMM's reasonable assistance, Reseller shall provide reasonably adequate support and training to its Subscribers with respect to the Application; provided, that such reasonable assistance by ORBCOMM shall be limited to general technical issues related to the ORBCOMM System and Reseller's Application.


(e) First-Line Support. Reseller shall provide, at its own cost and expense, First-Line Support to Subscribers.


(f) Tax Resale Certificate. Reseller shall, and shall procure that its Agents shall, provide ORBCOMM with a valid resale certificate.


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(g) Disclaimer of Rights. Reseller shall include in its agreements with its Subscribers a provision whereby the Subscriber disclaims any third-party beneficiary rights in this Agreement.


SECTION 6 RESPONSIBILITIES OF ORBCOMM


(a) Access. ORBCOMM shall provide access to and use of the ORBCOMM System to the Subscribers pursuant to the terms and conditions of this Agreement and the standard operational policies of general applicability established by ORBCOMM. ORBCOMM shall provide no less than thirty (30) days written notice to Reseller of any material change to such operational policies.


(b) Invoices. Following the end of each Billing Cycle, ORBCOMM shall provide an invoice to Reseller setting forth the Billing Cycle Amount charged to Reseller for such Billing Cycle. The content, format and delivery method of the invoice shall be agreed upon between the parties.


(c) Permits. ORBCOMM shall use all commercially reasonable efforts to maintain (directly or via contract with its regional licensees or country representatives), or to cause its Affiliates to maintain, as the case may be, all Permits required for ORBCOMM to provide ORBCOMM Services in the Territory.


(d) Reporting. ORBCOMM shall provide to Reseller, within thirty (30) days of being prepared, copies of ORBCOMM's quarterly and annual unaudited and, if prepared, audited financial statements. Reseller shall protect and maintain such financial information as strictly confidential and proprietary and agrees that such information is being provided by ORBCOMM solely for Reseller's use in evaluating the financial condition of ORBCOMM in connection with the sourcing relationship with ORBCOMM. Reseller shall not disclose, copy or distribute to any Person, except to its employees and Affiliates who need to know such information for the purpose described above, during the Term of this Agreement, without the prior written consent of ORBCOMM.


(e) ORBCOMM Indemnity. ORBCOMM shall defend, indemnify and save Reseller and its Agents and Subscribers harmless from and against any expense or liability, including costs, fees, reasonable attorneys' fees and damages, arising out of any claim, suit or proceeding that the ORBCOMM System, the use of the ORBCOMM System or the use of the ORBCOMM Marks constitute infringement of any patent, trad ...