**EXHIBIT 10.49****CONFIDENTIAL****ORBCOMM Inc.****INTERNATIONAL VALUE ADDED RESELLER AGREEMENT**     This U.S. Value Added Reseller Agreement (“Agreement”) is entered into as of this 31th day ofJuly 2006, by and between **ORBCOMM Inc.,**a Delaware corporation (“ORBCOMM”), with its officeslocated at 2115 Linwood Avenue, Fort Lee, New Jersey 07024, and XATA Corporation, a Minnesotacorporation (“Reseller”), with its offices located at 151 East Cliff Road, Burnsville, Minnesota55337.**WITNESSETH:**     **WHEREAS**, ORBCOMM operates a system that provides low-Earth orbit satellite-based datacommunication services; and     **WHEREAS**, Reseller desires to market and sell access to and use of the ORBCOMM System in theTerritory solely with respect to the Application (as defined herein below) in accordance with theterms of this Agreement.     **NOW, THEREFORE**, in consideration of the covenants and agreements contained herein, and forother good and valuable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties hereto agree as follows:**SECTION 1 — DEFINITIONS**     (a) “Administrative Charges” means the standard charges and fees of ORBCOMM for performingadministrative changes with respect to particular Subscriber Communicators as set forth on thePricing Rate Schedule.     (b) “Affiliate” means, with respect to any Person (i) any other Person that, directly orindirectly through one or more intermediaries, controls, is controlled by or is under commoncontrol with such Person. As used herein, the term “control” means possession, directly orindirectly, of the power to direct or cause the direction of the management or policies of aPerson, whether through the ownership of voting securities, by contract or otherwise.     (c) “Agent” means a Person (other than a Reseller or an Affiliate of Reseller) that isauthorized pursuant to Section 12 hereof to market and sell access to and use of the ORBCOMMSystem on Reseller’s behalf.     (d) “Application” means the application or applications used by Reseller and described onExhibit B and such other applications as may be approved in writing by
 

 
ORBCOMM in its sole discretion and which shall be described by written amendment toExhibit B.     (e) “Billing Cycle” means that monthly period selected by ORBCOMM for billing chargesincurred by Reseller and due ORBCOMM; provided that ORBCOMM may from time to time change thebeginning and ending dates of such monthly period upon not less than sixty (60) days prior writtennotice to Reseller.     (f) “Billing Cycle Amount” means, with respect to any Billing Cycle, the sum of all chargesincurred for such Billing Cycle (or, to the extent not previously billed, any prior Billing Cycle,but in no event shall ORBCOMM include in any Billing Cycle Amount charges for ORBCOMM Servicesrendered more than sixty (60) days prior to the then current Billing Cycle), including AccessCharges, Usage Charges (pro rated for the number of days during such Billing Cycle each SubscriberCommunicator is provisioned), Provisioning Charges, Administrative Charges and MiscellaneousCharges, for all Subscriber Communicators in each case, calculated using the prices set forth inthe Pricing Rate Schedule.     (g) “Effective Date” means the date of this Agreement as set forth in the Preamble.     (h) “Event of Default” has the meaning set forth in Section 13.     (i) “Facilities” means the satellites, ground segment equipment, network control equipment,gateway Earth stations and other equipment comprising the ORBCOMM System.     (j) “FCC” means the United States Federal Communications Commission or any successor agencythereto.     (k) “First-Line Support” means customer support that is provided using a facility that isstaffed by trained personnel who are equipped, among other things, to receive telephone, facsimileand e-mail inquiries from Subscribers and to dispose of such inquiries promptly by (i) resolvingsuch inquiries and/or (ii) opening trouble tickets, which may involve elevating such inquiries tohigher levels of support as necessary, monitoring the resolution process and informing theSubscriber of the status of the relevant trouble ticket and of the ultimate resolution of thetrouble ticket. First-Line Support also includes the ability to monitor and track the types ofinquiries received and the status of such inquiries.     (l) “Governmental Authority” means any federal, state, local or other governmental agency orauthority of the United States or any other country.     (m) “Minimum Billing Cycle Amount” means the amount set forth in Section 7.
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     (n) “Miscellaneous Charges” means such miscellaneous charges of ORBCOMM as may be in effectfrom time to time.     (o) “ORBCOMM” means ORBCOMM Inc., a Delaware corporation, and any of its wholly ownedsubsidiaries.     (p) “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 timeto time by ORBCOMM in accordance with Section 6(a).     (q) “ORBCOMM Services” means services provided by ORBCOMM using the ORBCOMM System from timeto time**.**     (r) “ORBCOMM System” means the low-Earth orbit satellite-based data communication systemoperated by ORBCOMM or any successors and assigns thereof.     (s) “Permits” means any permits, franchise, license, license exemption, consent, approval,authorization, registration, equipment type approval, or import approval; the issuance of which isrequired by a Governmental Authority with jurisdiction in any country in the Territory, tofacilitate the provision of ORBCOMM Services by Reseller in accordance with this Agreement.     (t) “Person” means an individual or a corporation, partnership, association, trust or anyother entity or organization.     (u) “Pricing Rate Schedule” means the Pricing Rate Schedule, a current copy of which isattached hereto as Exhibit C, which may be amended pursuant to Section 7 at any time andfrom time to time by ORBCOMM on at least sixty (60) days prior written notice to Reseller.     (v) “Provisioning Charge” means the charge for the activation of a particular SubscriberCommunicator for use in connection with the ORBCOMM System in the Territory, or outside theTerritory if Roaming Approved, as set forth on the Pricing Rate Schedule.     (w) “Roaming” means the temporary and pre-approved by ORBCOMM use of a SubscriberCommunicator outside of the Territory.     (x) “Roaming Approved” means an Application which has been approved by ORBCOMM to incorporateroaming.     (y) “Subscriber” means a customer purchasing access to and use of the ORBCOMM System fromReseller or an Agent of Reseller.
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     (z) “Subscriber Communicator” means the equipment used by Reseller or its Agents orSubscribers to access the ORBCOMM System, incorporating a modem which has been Type Approved by oron behalf of ORBCOMM for use with the ORBCOMM System and to which a physical serial number, devicecontrol number, radio identification codes, and a Subscriber Communicator Address have beenassigned.     (aa) “Subscriber Communicator Address” means the unique subscriber communicator address oraddresses assigned to a Subscriber Communicator for use within the ORBCOMM System.     (bb) “Subscriber Information” means any information regarding a Subscriber or SubscriberCommunicator provided to ORBCOMM by Reseller, Reseller’s Agents or Reseller’s employees during theterm of this Agreement.     (cc) “Territory” means the geographic or other market territory set forth in ExhibitA hereto.     (dd) “Type Approved” means the approval for use with the ORBCOMM System granted by or onbehalf of ORBCOMM to each model or type of modem based on ORBCOMM’s determination that such modelor type of modem meets the requirements set forth in the applicable specifications andsuccessfully meets the testing requirements specified in each applicable subscriber communicatormanufacturing agreement.     (ee) “Usage Charges” means the per unit charges incurred by a particular SubscriberCommunicator as set forth on the Pricing Rate Schedule.**SECTION 2 — PURCHASE OF SERVICE; NON-EXCLUSIVE LICENSE**     (a) Purchase and Sale. ORBCOMM hereby agrees to sell to Reseller, and Resellerhereby agrees to buy from ORBCOMM, ORBCOMM Services pursuant to the terms of this Agreement inconnection with the use of the ORBCOMM System solely within the Territory and solely with respectto the Application.     (b) Non-Exclusive License to Resell. ORBCOMM hereby grants to Reseller anon-exclusive license to resell access to and use of the ORBCOMM System in accordance with theterms of this Agreement solely within the Territory and solely with respect to the Application.Any purported resale by Reseller to a prospective Subscriber outside of the Territory, other thanwith respect to the Application or other than pursuant to the terms and conditions of thisAgreement, shall be null and void.     (c) Non-Exclusive License to Promote. ORBCOMM hereby grants to Reseller anon-exclusive license to promote, solicit and market access to and use of the ORBCOMM Systemsolely within the Territory and solely with respect to the Application.
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     (d) Sublicense. Subject to Section 12, Reseller may sublicense Agents to promote,solicit and market access to and use of the ORBCOMM System on Reseller’s behalf, provided that aSubscriber shall, in any event, purchase and receive services directly from Reseller and not fromany Agent.**SECTION 3 — TERM OF AGREEMENT**     Subject to the provisions of this Agreement, the term of this Agreement shall commence on theEffective Date and continue for a period of three (3) years (hereinafter the “Initial Term”). ThisAgreement may be renewed for an additional term of three (3) years (the “Initial Renewal Term”),provided Reseller first notifies ORBCOMM in writing of its desire to extend the Agreement for suchInitial Renewal Term at least 90 days prior to the expiration of the Initial Term. This Agreementmay be renewed for further terms of three (3) years each (each a “Subsequent Renewal Term” and,together with the Initial Term and the Initial Renewal Term, collectively the “Term”) providedthat: (i) Reseller first notifies ORBCOMM in writing of its desire to extend the Agreement atleast ninety (90) days prior to the expiration of the Initial Renewal Term or any SubsequentRenewal Term, and, (ii) ORBCOMM notifies Reseller in writing of its desire to extend the Agreementfor such Subsequent Renewal Term at least thirty (30) days prior to the expiration of the InitialRenewal Term or any Subsequent Renewal Term.**SECTION 4 — RESPONSIBILITIES OF RESELLER**     (a) Promotion. Reseller shall promote, solicit and market access to and use of theORBCOMM System within the Territory and with respect to the Application. Reseller shall use allreasonable efforts to secure and retain Subscribers for the Application in the Territory. Resellershall not promote, solicit or market access to and use of the ORBCOMM System or otherwise take anyaction 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 System outside of the Territory.Reseller shall not promote, solicit or market access to the ORBCOMM System in connection with anyapplication other than the Application.     (b) Sales Forecast. Reseller shall, upon request by ORBCOMM promptly provide ORBCOMMwith a written sales forecast, substantially in the form of Exhibit D (the “SalesForecast”) setting forth in reasonable detail the information requested. Reseller shall preparethe Sales Forecast on the basis of Reseller’s good faith estimate of projected sales and on thebasis of reasonable, good faith assumptions.     (c) Provisioning. Reseller shall promptly notify ORBCOMM, in the manner prescribedby ORBCOMM from time to time, of each Subscriber addition, Subscriber Communicator Address change,Subscriber suspension or deletion from the ORBCOMM System or other change in the service requestedby Subscriber. Reseller shall be responsible for all charges incurred from the date of anySubscriber addition through the date Reseller properly notifies ORBCOMM of such Subscriber’ssuspension, deletion or account transfer, Subscriber
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Communicator Address change or other service change. In the event Reseller does not properlynotify ORBCOMM, in the manner prescribed by ORBCOMM, of a Subscriber suspension, deletion oraccount transfer, Subscriber Communicator Address change or other service change, Reseller shallbe responsible for all charges incurred by that Subscriber through and including the business dayfollowing the business day Reseller properly notifies ORBCOMM of that Subscriber’s suspension,deletion or account transfer, Subscriber Communicator Address change or other service change.Upon not less than ten (10) days prior written notice, ORBCOMM may change the manner by whichReseller notifies ORBCOMM of a Subscriber addition, Subscriber Communicator Address Change,Subscriber suspension or deletion from the ORBCOMM System, or other change in the servicerequested by Subscriber.     (d) Payments. Reseller shall be solely responsible for (i) billings to andcollections from its Subscribers and (ii) all amounts due to ORBCOMM under Section 7 in accordancewith invoices rendered by ORBCOMM with respect to any Subscriber Communicator under Reseller’saccount regardless of whether or not Reseller bills and/or collects from its Subscribers in themanner prescribed by ORBCOMM from time to time.     (e) Representations and Warranties. Reseller shall not, and shall procure that itsAgents shall not, make any representation, warranty, indemnity or similar claim concerning theoperation, performance, reliability, redundancy, fitness for particular purpose or similar featureof the ORBCOMM System or ORBCOMM Services except as specifically set forth herein and as shall beconsistent with any and all written documentation provided by ORBCOMM to Reseller, as suchinformation may be revised from time to time by ORBCOMM. ORBCOMM shall provide Reseller withupdated versions of such written documentation upon thirty (30) days notice in the event materialchanges are made by ORBCOMM to such documentation.     (f) Standards. Reseller shall, and shall procure that its Agents shall, employ thehighest standards of business conduct in the performance of its business and its obligationshereunder. Reseller shall, and shall procure that its Agents shall, not do anything that couldreasonably be expected to discredit, dishonor, reflect adversely on or injure the reputation ofORBCOMM, the ORBCOMM Services, or the ORBCOMM System.     (g) Support and Training. Reseller shall provide adequate support and training toits Subscribers with respect to the access to and use of the ORBCOMM System in connection with theApplication.     (h) Demonstration Units. Reseller shall not be entitled to the use of any SubscriberCommunicators as demonstration units without the express, prior, written permission of ORBCOMM.Reseller shall submit to ORBCOMM a written request for each demonstration unit desired which shalldetail among other things: (i) the number of demonstration units required by Reseller; (ii) theperiod of time the demonstration units will be required; (iii) the application to be demonstrated;and, (iv) the prospective customer. Demonstration units provided to Reseller pursuant this Section4(h) shall not be subject to any fees except for Provisioning Charges. ORBCOMM may deactivate anunauthorized demonstration unit at any time with or without notice to Reseller and without anyliability to
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Reseller and may deactivate an authorized demonstration unit at any time with or withoutnotice following the expiration of the relevant demonstration period. Nothing in this Section 4(h)shall prohibit Reseller from activating Subscriber Communicators for it own account, subject tothe Pricing Rate Schedule, to be used for demonstration purposes.     (i) Contracts. Reseller shall enter into a contract (which may include a purchaseorder or other similar binding agreement) with each of its Subscribers, which contract shallprovide, in addition to such other terms and conditions as Reseller may require (provided suchterms and conditions do not conflict with any of the terms required by this Section 4(i)), for thefollowing provisions (and any other provisions that ORBCOMM may from time to time reasonablyrequire Reseller to include):     (i) Subscriber shall not have and shall not acquire any proprietary interest in theSubscriber Communicator Address or any other numbers or codes associated with or allocatedto a Subscriber Communicator.     (ii) NONE OF ORBCOMM, XATA OR ANY AFFILIATE OF ORBCOMM OR XATA HAS MADE, OR SHALL BEDEEMED TO HAVE MADE, ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THEORBCOMM SYSTEM OR THE ORBCOMM SERVICES. EACH OF ORBCOMM, XATA AND THEIR AFFILIATES EXPRESSLYDISCLAIMS WITH RESPECT TO SUBSCRIBER AND SUBSCRIBER EXPRESSLY WAIVES, RELEASES AND RENOUNCESALL WARRANTIES OF ORBCOMM, XATA AND THEIR AFFILIATES ARISING BY LAW OR OTHERWISE, WITH BUTNOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING ORUSAGE OF TRADE; (C) ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF THEORBCOMM SYSTEM, THE ORBCOMM SERVICES OR ANY OTHER SERVICES PROVIDED BY ORBCOMM, XATA ORTHEIR AFFILIATES USING THE ORBCOMM SYSTEM; AND (D) ANY WARRANTY UNDER ANY THEORY OF LAW,INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLETHEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO,STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT CONTAINED IN THISAGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM, XATA OR THEIR AFFILIATES.     (iii) Subscriber acknowledges and understands that it shall bear all responsibility,risk and cost associated with developing and maintaining its business, and neither ORBCOMM,XATA, nor their Affiliates shall be liable to Subscriber for any costs or damages caused byany failure or impaired performance of the ORBCOMM System or any component thereof.
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          (iv) Subscriber acknowledges that ORBCOMM shall supply the ORBCOMM Services on a goodfaith efforts basis and that service failures and interruptions may occur and are difficultto assess as to cause or resulting damages. The parties agree that, except for the creditsto Subscriber due from XATA pursuant to Section ___of this Agreement, none of ORBCOMM,XATA, nor their Affiliates shall be liable to Subscriber for any losses or damages of anykind whatsoever arising out of any failure of performance, error, omission, interruption,deletion, defect, delay in operation or transmission, communication line failure, theft ordestruction or unauthorized access to, alteration of or use of records associated with theORBCOMM System or the ORBCOMM Services, whether for breach of contract, tortious behavior,negligence or under any other cause of action.          (v) 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 ORANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. In addition, in no event shallany liability of ORBCOMM or its Affiliates exceed the amount of One Thousand U.S. Dollars(US$ 1,000.00).          (vi) Use of the ORBCOMM System or the ORBCOMM Services is authorized by GovernmentalAuthorities only in certain countries, and is permissible only when all Permits have beenreceived from the applicable Governmental Authorities. In addition, use of a SubscriberCommunicator is only permissible if it has been specifically approved for use in thatcountry or territory. For information on those countries or territories in which use of theORBCOMM System is authorized and whether a Subscriber Communicator has been approved foruse in another country or territory, please contact your ***[NAME OF RESELLER HERE]***representative.               (j) First-Line Support. Reseller shall provide, at its own cost and expense,First-Line Support to Subscribers. Reseller shall diligently investigate, with the assistance ofORBCOMM, if such assistance is reasonably requested by Reseller, any complaint from any Subscriberrelating to the provision of ORBCOMM Services to such Subscriber, and shall provide ORBCOMM with asummary report describing those complaints deemed significant by Reseller, which report shalldescribe the reasons for such complaint.          (k) Inventory. Reseller shall maintain a sufficient inventory of SubscriberCommunicators in good working order for purposes of replacing defective or malfunctioning units,spares and new account sales. Reseller shall work directly with the providers of the SubscriberCommunicators to ensure that Subscriber Communicators in need of repair shall be promptlyexchanged or repaired.          (l) Tax. Reseller shall, and shall procure that its Agents shall, provide ORBCOMMwith a valid resale tax certificate, and accordingly, ORBCOMM is not required to collect fromReseller or its Agents any sales, use, excise or other similar tax on ORBCOMM Services provided byORBCOMM to Reseller**.**All other applicable transfer taxes and filing,
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recording, registration, stamp, VAT, documentary and other similar taxes and fees that arepayable in connection with this Agreement will be borne by and be the obligation of Reseller andits Agents.     (m) Standards. Reseller shall comply, and shall procure that its Agents shallcomply, with the standards established by ORBCOMM for use its service marks, trademarks and tradenames as contained in the ORBCOMM Graphic Identity Manual, for all advertising, promotional andSubscriber training materials to be used or distributed by Reseller or its Agents in connectionwith ORBCOMM, the ORBCOMM System or any ORBCOMM Services.**SECTION 5 — RESPONSIBILITIES OF ORBCOMM**     (a) Access. Subject to the provisions of this Agreement and the operationalpolicies established by ORBCOMM in its sole discretion from time to time, ORBCOMM shall provideaccess to and use of the ORBCOMM System to the Subscribers pursuant to the terms and conditions ofthis Agreement.     (b) Invoices**.**Following the end of a Billing Cycle, ORBCOMM shall provide an invoiceto Reseller setting forth the Billing Cycle Amount charged to Reseller for such Billing Cycle. Inno event shall ORBCOMM include in any Billing Cycle Amount charges for ORBCOMM Services renderedmore than sixty (60) days prior to the then-current Billing Cycle.     (c) Licenses and Permits. ORBCOMM shall use all commercially reasonable efforts tomaintain, or to cause its Affiliates to maintain, as the case may be, all Permits required by theFCC or any other applicable Governmental Authority for ORBCOMM to provide ORBCOMM Services in theTerritory.     (d) Changes. Upon receipt of the notice referred to in Section 4(c), ORBCOMM shalleffect such Subscriber addition, Communicator Address change, Subscriber deletion or suspension,or other change in service from the ORBCOMM System within three business days or as soonthereafter as practicable.     (e) Operation of ORBCOMM Service; Transmission of Subscriber Data. ORBCOMM shallmaintain the ORBCOMM System in proper working order, and ORBCOMM shall use commercially reasonableefforts to (i) minimize any downtime or service interruptions regarding the ORBCOMM System and theORBCOMM Services; and (ii) ensure that Subscriber Data is timely, accurately and securelytransmitted from, and sent to, the applicable Subscriber Communicators via the ORBCOMM System.ORBCOMM shall provide notice to Reseller regarding any downtime or service interruptions regardingthe ORBCOMM System and ORBCOMM Services and shall keep Reseller informed of ORBCOMM’s progress torestore service.
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     (f) Network Outages and Service Interruptions. Reseller shall have no obligation topay to ORBCOMM Billing Cycle Amounts of ORBCOMM Services rendered during periods of system-wideservice outages or interruptions of more than 48 hours directly resulting from malfunctions orfailures in the ORBCOMM System to operate within its normal operational and technical parameters(“Outage Periods”). ORBCOMM shall issue credits, if necessary, against any Billing Cycle Amountsduring any Outage Periods. Reseller shall be entitled to credit such pro-rata amounts againstSubscriber invoices.     (g) ORBCOMM Maintenance and Repairs. ORBCOMM shall have the right to interrupt theORBCOMM Services from time to time, without prior notice to Reseller, for the purpose ofperforming maintenance on or upgrading the ORBCOMM System, and such interruptions of ORBCOMMService shall not be deemed an Outage Period as defined in the preceding Section. Notwithstandingthe foregoing, ORBCOMM shall notify Reseller no less than forty-eight (48) hours in advance of anyscheduled interruptions of the ORBCOMM Service for the purpose of performing maintenance on orupgrading the ORBCOMM System.     (h) Sales and Marketing Assistance. ORBCOMM agrees to provide reasonable sales andtechnical support to Reseller as may be reasonably requested by Reseller to assist in securingstrategic or significant customer accounts, provided such support does not interfere withORBCOMM’s regular course of business. Such support may include accompanying Reseller personnel atsales meetings, participating on sales teleconferences or attending trade shows. Prior to ORBCOMMproviding such support, the parties shall agree to the costs associated with such support thatReseller shall reimburse ORBCOMM for and Reseller shall reimburse ORBCOMM for such costs.     (i) Backwards Compatibility. ORBCOMM shall make all commercially reasonable effortsto ensure that the ORBCOMM System remains backwards compatible with Subscriber Communicatorsprovisioned on the ORBCOMM System prior to such changes for at least seven (7) years from the datehereof; provided, however, ORBCOMM shall not be responsible for changes to the ORBCOMM Systemwhich are required by any relevant Governmental Authority which render the ORBCOMM Systemincompatible with Subscriber Communicators provisioned prior to such change.**SECTION 6 — TRADE NAME, TRADEMARKS AND OTHER RIGHTS AND INTERESTS**     (a) Right to Use. Both parties acknowledge and agree that “ORBCOMM” and allrelated marks, logos and designs are service marks, trademarks and a trade name of ORBCOMM or itsAffiliates (collectively, the “ORBCOMM Marks”). ORBCOMM hereby grants to Reseller rights to usesuch ORBCOMM Marks in the Territory solely in connection with the activities authorized under thisAgreement and in furtherance of the purposes of this Agreement, with the right to sublicense suchrights to its Agents; provided, that such rights to use the ORBCOMM Marks shall terminateimmediately and without further action upon the termination or expiration of this Agreement.Reseller shall, and shall cause its Agents who are sublicensed under this Agreement to, use theORBCOMM Marks in all of their printed and
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electronic media material that refer to ORBCOMM, the ORBCOMM System, ORBCOMM Services or theApplication, either directly or indirectly, in strict conformity to all ORBCOMM’s requirements foruse of the ORBCOMM Marks, including registry and trademark symbols set forth in the ORBCOMMGraphic Identity Manual, and shall be subject to ORBCOMM’s review from time to time at ORBCOMM’srequest. ORBCOMM shall have the right to reject any use of the ORBCOMM Marks as non-compliant withthe ORBCOMM Graphic Identity Manual in its sole discretion. ORBCOMM shall have the right to modifythe ORBCOMM Graphic Identity Manual from time to time after giving Reseller not less than fivebusiness days prior written notice of such modification; provided, that for a period of six monthsfrom the receipt of such notice, Reseller shall be entitled to continue to use all existingmarketing materials that previously complied with the ORBCOMM Graphic Identity Manual. Resellershall be responsible for ensuring that its Agents to whom it sublicenses the ORBCOMM Marks complyin all respects with the terms of use of the ORBCOMM Marks as set forth herein, and Resellerhereby agrees to indemnify, defend and hold harmless ORBCOMM from and against any loss, expense orsettlement arising from its Agents’ failure to abide by such terms.     (b) Cooperation. Reseller shall, and shall cause its Agents to, cooperate withORBCOMM in providing support and any information that may be required in defense of the ORBCOMMMarks as a result of the use thereof by Reseller or its Agent(s) pursuant to this Agreement.     (c) Revocation. ORBCOMM reserves the right to revoke the license to use the ORBCOMMMarks, if, in its sole discretion, it determines that Reseller or its Agents have improperly usedany such material.     (d) Prohibited Acts. Reseller agrees, and shall cause its Agents, not to (i) engagein any activities or commit any acts, directly or indirectly, that may contest, dispute orotherwise impair ORBCOMM’s right, title and interest in the ORBCOMM Marks, (ii) sublicense use ofthe ORBCOMM Marks to any other Person, 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 survivetermination of this Agreement.     (e) Approvals. Reseller shall be required to obtain for itself and its Agents towhom 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 containreferences to ORBCOMM, or (ii) any use of the word “ORBCOMM” for a logo, trademark, service markor trade name; provided that if such materials or use, as the case may be, comply with theprovisions of ORBCOMM’s Graphic Identity Manual with respect thereto, the prior written consent ofORBCOMM shall not be required. Further, unless rejected within ten (10) days of receipt thereof byORBCOMM, such materials or use shall be deemed approved by ORBCOMM.**SECTION 7 — FEES AND PAYMENT TERMS**
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     (a) Fees. Reseller shall pay to ORBCOMM (or its designee) the greater of the BillingCycle Amount or the Minimum Billing Cycle Amount for any Billing Cycle as provided in this Section7. The Minimum Billing Cycle Amount shall be $2,500.00.     (b) Changes to the Pricing Rate Schedule. ORBCOMM, in its sole discretion, maymodify the Pricing Rate Schedule upon sixty (60) days written notice to Reseller; provided,however, that if any change is an increase such change shall be limited to no more than * percent,and occur no more frequently than once annually; provided further, however, that such changesshall only apply to Subscriber Communicators provisioned after the change is effective and tothose provisioned before at such time their contracts with Reseller are renewed after the changesbecome effective.     (c) Most Favored Pricing. Subject to the terms of the last paragraph of this Section7(c), ORBCOMM agrees that the Pricing Rate Schedule as set forth in Exhibit C consists of pricingfor each Price Plan Code and fee item that is less than or equal to that of any other resellerother than Volvo Group and its Affiliates or General Electric Company and its Affiliates in thenon-OEM, in-cab, commercial trucking market based on the number of Subscriber Communicatorsprovisioned on it’s account and whose message profile and frequency of transmission are in the samecategories as Reseller’s. ORBCOMM further agrees, subject to the terms of the last paragraph ofthis Section 7(c), to amend the Price Rate Schedule to ensure that, for Term of the Agreement, suchpricing continues to be less than or equal to that of any other reseller other than the Volvo Groupand its Affiliates or General Electric Company and its Affiliates in the non-OEM, in-cab,commercial trucking market based on the number of Subscriber Communicators provisioned on it’saccount and whose message profile and frequency of transmission are in the same categories asReseller’s. For clarification, this Section 7(c) shall not be invoked in cases where otherresellers are utilizing Reseller’s Applications.     Subject to the terms of the last paragraph of this Section 7(c), if ORBCOMM shall at any timeenter into a value added reseller agreement with any of companies listed in Exhibit E forapplications that directly compete with those contained in Exhibit B, then the prices provided tosuch company shall not be less then those in Exhibit C hereof, for the same message profile andfrequency of transmission categories regardless of what number of Subscriber Communicators suchcompany has provisioned on it’s account. In addition, notwithstanding anything contained herein tothe contrary, ORBCOMM shall not give any other U.S. value added reseller (other than (a) VolvoGroup or its Affiliates, (b) General Electric Company or its Affiliates or (c) another resellerutilizing Reseller’s Applications), for any application which directly competes with thosecontained in Exhibit B in the non-OEM market, a price lower than that charged to Reseller for thesame message profile and frequency of transmission categories, unless the number of SubscriberCommunicators provisioned on its account is more than the number of units being paid for byReseller plus 30%.     Subject to the terms of the last paragraph of this Section 7(c), if at any time during theTerm of this Agreement, ORBCOMM does enter into pricing arrangements which does not conform to thisSection 7(c), then ORBCOMM shall adjust the Price Rate Schedule to be lower than such prices. * Material has been omitted pursuant to a request forconfidential treatment and such material has been filed separatelywith the Securities and Exchange Commission.
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     Notwithstanding anything contained herein to the contrary, ORBCOMM’s obligations under thisSection 7(c) shall apply only for so long as Reseller has provisioned on the ORBCOMM System on itsaccount no fewer than * new billable Subscriber Communicators (net     of any deactivations or suspensions) during each previous twelve month period by each     anniversary date of this Agreement, in each case, in excess of the aggregate number ofbillable Subscriber Communicators provisioned on Reseller’s account as of the beginning of suchtwelve month period. For the avoidance of doubt, if Reseller fails toprovision at least * billable Subscriber Communicators (net of any deactivations or suspensions)during the previous twelve months by any anniversary of this Agreement, then ORBCOMM shall have nofurther obligations under this Section 7(c).     (d) Currency. All amounts to be paid by Reseller pursuant to this Section 7 shall bepaid in full in U.S. Dollars within forty-five (45) days of the date of the invoice.     (e) Method of Payment. All amounts to be paid by Reseller pursuant to thisSection 7 shall be paid by check or wire transfer of immediately available fiends in accordancewith ORBCOMM’s written instructions as set forth in the invoice.     (f)Late Fees. All amounts to be paid by Reseller pursuant to this Section 7must be received by the due date to be considered paid on time. ORBCOMM reserves the right to applya late payment fee on any balances that remain unpaid forty-five (45) days following the date ofthe invoice in the amount equal to the lesser of one (1) percent per month of such amountbeginning on the date the payment was due.     (g)Taxes. The charges or fees set forth in the Pricing Rate Schedule excludeall present and future taxes, duties, required contributions or fees of any nature, including, butnot 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 theservices provided or on the charges or fees invoiced to Reseller under this Agreement(collectively, “Taxes”). Any such Taxes, however denominated, that may now or hereafter be leviedon the services provided or payments made under this Agreement, excluding taxes based on ORBCOMM’snet income, shall be paid by Reseller and the relevant amount payable by Reseller shall beincreased by such amount as is necessary to make the actual amount received by ORBCOMM after suchwithholding equal to the amount that would have been received had no withholding been required andReseller shall make such withholding and pay the amount withheld to the relevant taxationauthority. Reseller is responsible for (i) the payment of Taxes, whether they are concurrentlyinvoiced by ORBCOMM with the original invoiced amount or subsequently invoiced by ORBCOMM, (ii)determining the applicability to Reseller of the tax * Material has been omitted pursuant to a request forconfidential treatment and such material has been filed separatelywith the Securities and Exchange Commission.
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laws of the jurisdiction where delivery occurs, and (iii) the collection and payment of allrequired Taxes from its Subscribers.**SECTION 8 — REPRESENTATIONS, WARRANTIES AND COVENANTS**     (a) Representations and Warranties. Reseller represents and warrants to ORBCOMM that(i) Reseller is duly organized or formed, validly existing and in good standing under the laws ofthe state of its organization or formation, as the case may be, and in each jurisdiction in whichthe nature of its business requires it to be so, (ii) the execution, delivery and performance ofthis Agreement by Reseller have been duly authorized by all necessary action (corporate orotherwise) on the part of Reseller, (iii) this Agreement has been duly executed and delivered byReseller and constitutes a legally valid and binding obligation of Reseller, enforceable againstReseller in accordance with its terms, (iv) Reseller has all Permits necessary for Reseller toenter into and perform its obligations under this Agreement, and (v) Reseller shall not violate anycopyright, 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 ofits obligations under this Agreement.     (b) ORBCOMM’s Representations and Warranties. ORBCOMM represents and warrants toReseller that (i) ORBCOMM is duly organized or formed, validly existing and in good standing underthe laws of the state of its organization or formation, as the case may be, and in eachjurisdiction in which the nature of its business requires it to be so, (ii) the execution, deliveryand 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 anddelivered by ORBCOMM and constitutes a legally valid and binding obligation of ORBCOMM, enforceableagainst ORBCOMM in accordance with its terms, and (iv) ORBCOMM or its Affiliates have all Permitsnecessary for ORBCOMM to enter into this Agreement and perform its obligations in accordance withthe terms hereof.     (c) Indemnification.Reseller and ORBCOMM agree to indemnify and holdharmless the other and its Affiliates, and their respective stockholders, members, officers,directors, employees, agents and representatives against all claims, demands, losses, costs orliabilities (including reasonable attorneys’ fees and costs) arising from or in connection withtheir respective breach of any representations, warranties, covenants or agreements containedherein.**SECTION 9 — U.S. GOVERNMENT SUBSCRIBERS**     In the case of U.S. government subscribers, Reseller acknowledges and agrees that the ORBCOMMServices shall be rendered on a commercial basis consistent with Part 12 of the FederalAcquisition Regulation (“FAR”), as amended, and that Reseller shall, and shall procure that itsAgents shall, offer the ORBCOMM Services as “Commercial Items” as set
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forth in FAR Part 12. As set forth in FAR Part 12, ORBCOMM accepts only the followingprovisions with respect to any order issued under any U.S. Government contract:       FAR 52.222-26 Equal Opportunity       FAR 52.222-35 Affirmative Action for Special Disabled andVietnam Era Veterans       FAR 52.222-36 Affirmative Action for Handicapped Workers**SECTION 10**—**TESTING**     (a) Fitness for Use. Notwithstanding anything else in this Agreement, Resellershall not promote, solicit and/or market access to and use of the ORBCOMM System with respect tothe Application until such Application has been tested by and at the sole expense of Reseller andsuch testing demonstrates the Application’s fitness for commercial use to the reasonablesatisfaction of ORBCOMM. The test or tests to be utilized pursuant to this section 10(a) shall bejointly developed by Reseller and ORBCOMM and shall be satisfactory to ORBCOMM in its solediscretion to determine the fitness for commercial use of the Application with the ORBCOMM System.Provided Reseller has given ORBCOMM ten (10) days prior written notice that it desires to have anApplication approved, ORBCOMM agrees to accept or reject Reseller’s Application with fifteen (15)days after receiving a sample of the Application and all necessary information supporting suchrequest. In the event ORBCOMM determines that such Application is not fit for commercial use withthe ORBCOMM System, ORBCOMM shall identify to Reseller why the Application is not fit forcommercial use with the ORBCOMM System. Reseller may resubmit an Application which was deemed byORBCOMM unfit for commercial use with the ORBCOMM System (on the terms set forth above).Upgrades, enhancements or modifications made to an Application previously approved for use on theORBCOMM System are subject to reasonable testing by ORBCOMM to ensure that such Applicationcontinues to be fit for commercial use with the ORBCOMM System and has not been modified to suchan extent that it would be considered a new application. The Applications set forth on Exhibit Bhave been tested and have been approved for use with the ORBCOMM System.     (b) Subsequent Failure. In the event that an Application, which has been tested andapproved pursuant to Section 10(a), subsequently fails to meet the reasonable standards for fitnessfor commercial use as determined by ORBCOMM from time to time, ORBCOMM may suspend ORBCOMM Servicesto Reseller, Subscribers, other Persons or Subscriber Communicators that utilize such Applicationuntil such time as Reseller can demonstrate to ORBCOMM, at Reseller’s sole expense, that suchApplication is once again fit for commercial use to the reasonable satisfaction of ORBCOMM.     (c) No Liability. In the event ORBCOMM suspends ORBCOMM Services to Reseller,Subscribers, other Persons or Subscriber Communicators that utilize such Application pursuant toSection 10(a) or 10(b) of this Agreement, ORBCOMM shall not incur any liability to
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Reseller, Reseller’s Agents or Subscribers. Reseller shall indemnify and hold harmless ORBCOMMfrom any such liability for such suspension of service to Reseller, Subscribers, other Persons orSubscriber Communicators that utilize such Application.**SECTION 11 — RESTRICTIONS ON ACCESS AND USE**     (a) Abuse and Fraudulent Use. Access to the ORBCOMM System is furnished subject tothe condition that there be no abuse or fraudulent use of the ORBCOMM System by Reseller, itsAgents, the Subscribers or any other Person. Reseller shall not abuse or fraudulently use theORBCOMM System and shall take any and all steps necessary to control and prevent abuse orfraudulent use of the ORBCOMM System by its Agents, Subscribers and any other Person. Abuse orfraudulent use of the ORBCOMM System includes, but is not limited to: (i) providing or attemptingto provide, or assisting or permitting another Person to (A) access, alter or interfere with thecommunications and/or information of a Subscriber by rearranging, tampering or making anunauthorized connection with any Facilities of ORBCOMM or (B) use of any scheme, falserepresentation or false credit device, with the intent to avoid payment, in whole or in part, forORBCOMM Services; (ii) Using the ORBCOMM System in such a manner so as to interfere unreasonablywith the use of the ORBCOMM System by Subscribers; or (iii) Using the ORBCOMM System to conveyinformation that is deemed, in ORBCOMM’s sole judgment, to be obscene, salacious or prurient, or toconvey information of an unlawful nature or in an unlawful manner.     (b) Knowledge. Reseller shall promptly advise ORBCOMM in the event Reseller hasknowledge or reason to believe that any Agent, Subscriber or any other Person is abusing orfraudulently using the ORBCOMM System in violation of Section 11(a) hereof. In the event ORBCOMM isadvised or reasonably believes that Reseller, any Agent, Subscriber or other Person, is abusing orfraudulently using the ORBCOMM System as specified in Section 11(a), ORBCOMM shall have the rightto immediately suspend or terminate access to the ORBCOMM System to such Reseller’s, Agent’s,Subscriber’s or other Person’s access to the ORBCOMM System for any or all of such Reseller’s,Agent’s, Subscriber’s or other Person’s Subscriber Communicators which are being fraudulently orabusively used, and ORBCOMM shall have no liability for such termination of access to the ORBCOMMSystem. ORBCOMM shall promptly notify Reseller of any such suspension or termination of ORBCOMMService and the basis for such action.     (c) Electromagnetic Interference. The parties understand and acknowledge that fromtime to time one or more resellers, subscribers, other Persons or subscriber communicators maycause electromagnetic interference, either intentionally or unintentionally, with (i) the operationof the ORBCOMM System in such a way as to impair the quality of service provided by ORBCOMM to itsother resellers and subscribers or (ii) the operation of another system or application approved bythe FCC or other Governmental Authority. Accordingly, the parties agree that: (A) ORBCOMM may upondiscovery of, or upon reasonable suspicion of, any such interference or abuse by a reseller,subscriber, other Person or subscriber communicator discontinue ORBCOMM Services to the
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reseller, subscriber, other Person or subscriber communicator that is causing the interferenceor abuses; and, (B) Reseller shall promptly advise ORBCOMM in the event Reseller has knowledge orreason to believe that any Agent, Subscriber, other person or any subscriber communicator isinterfering with the operation of the ORBCOMM System or any other system or application approved bythe FCC or any other Governmental Authority.     (d) Cure. In the event that a Subscriber Communicator interferes with or impairs theperformance the ORBCOMM System or any of any other application approved by the FCC or any otherGovernmental Authority, whether intentional or unintentional, Reseller shall immediately take anyand all actions necessary and advisable to cure such interference or impairment (including, ifnecessary repair, replacement or deactivation of the applicable Subscriber Communicator).     (e) Compliance. Reseller shall, and shall procure that its Agents shall, comply withall applicable laws, rules and regulations of any applicable Governmental Authority in theperformance of its obligations hereunder and in the use of the ORBCOMM System or any SubscriberCommunicator. Reseller shall take any and all necessary action to prevent violations of all suchapplicable laws, rules and regulations by its Subscribers, Agents and employees in connection withthe use of the ORBCOMM System or any Subscriber Communicators, whether intentional orunintentional. In the event such a violation occurs, Reseller shall immediately take any and allactions necessary or advisable upon consultation with ORBCOMM to cure such violation promptly.Reseller shall promptly advise ORBCOMM in the event Reseller has knowledge or reason to believethat 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 ORBCOMMServices to such Agent or Subscriber.     (f) Unusually High Usage; Message Priority. Each party shall use commerciallyreasonable efforts to monitor Subscriber Communicator usage and transmissions and to identifyunusually high usage or transmissions. Should Reseller detect or be advised by ORBCOMM of aninstance of unusually high Subscriber Communicator usage or transmissions, including as a result ofdisruption in Subscriber’s cellular service for dual-mode Subscriber Communicators, Reseller shallpromptly investigate any such instance of unusually high Subscriber Communicator usage ortransmissions and shall promptly report such findings to ORBCOMM for evaluation; provided, thatORBCOMM shall have the right to deactivate or suspend any such Subscriber Communicator. ForReseller’s dual-mode Subscriber Communicators (i.e. those which use a communication system inaddition to the ORBCOMM System), Reseller shall assign a normal priority value to all messagestransmitted to or received by such Subscriber Communicators and each Application shall conform tothe Application Note attached as Exhibit E with respect to use of message
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priority. Under normal operational circumstances, such priority values will have no impact onsending or receiving messages by such Subscriber Communicators. During the occurrence andcontinuation of any such unusually high usage or transmissions, ORBCOMM shall have the right toimplement message priority procedures to give priority to usage and transmissions by subscribercommunicators other than the dual-mode Subscriber Communicators. ORBCOMM shall use commerciallyreasonable efforts to notify Reseller of any such implementation of message priority procedures assoon as practicable. Reseller shall use commercially reasonable efforts to limit the use ofmessage inquiries by its Applications.          (g) Type Approved Modems. (i) Reseller shall be responsible for ensuring that onlyType Approved modems are incorporated into Subscriber Communicators sold or otherwise distributedby it and that all Subscriber Communicators used by its Subscribers in connection with the ORBCOMMSystem, and each Subscriber’s use thereof, at all times meets the regulatory requirements of theFCC and any other applicable Governmental Authorities. Upon the written request of Reseller,ORBCOMM shall provide Reseller from time to time with a list of Type Approved modems.          (ii) In the event any Subscriber Communicator manufacturer notifies Reseller that aSubscriber Communicator does not meet the regulatory requirements of the FCC or any otherapplicable Governmental Authority, Reseller shall promptly notify ORBCOMM of suchnon-conforming Subscriber Communicators. In the event Reseller so notifies ORBCOMM, orORBCOMM otherwise becomes aware that any Subscriber Communicator does not meet theregulatory requirements of the FCC or any other applicable Governmental Authority, ORBCOMMshall have the right to terminate immediately without notice such Subscriber Communicators’access to and use of the ORBCOMM System.          (iii) During the term of this Agreement, Reseller shall maintain in full force andeffect all Permits that are required in connection with the performance of its obligationshereunder, provided, however, that Reseller, its Agents or Affiliates, shall not apply forany Permit or contact any Governmental Authority regarding any Permit, without firstobtaining written authorization to do so from ORBCOMM. Upon the written request fromORBCOMM, Reseller shall provide ORBCOMM reasonable evidence of the validity oreffectiveness of any Permit held by or on behalf of Reseller in connection with thisAgreement.          (h) Roaming. Reseller shall not submit for activation any Subscriber Communicatorfor use outside of the Territory except in connection with Applications that are Roaming Approved.          (i) Restrictions on Access. Reseller shall notify its Agents and Subscribersregarding the foregoing restrictions on access as set forth inSections 11(a) – (h).
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**SECTION 12 — APPROVAL OF AGENTS**          (a) Conditions. Reseller may appoint a Person as an Agent without the priorwritten approval of ORBCOMM; provided, that such appointment is in writing and states that suchPerson agrees to comply with the following:          (i) such Person shall agree in writing that it shall be bound by, and shall perform itsobligations in accordance with, the terms and conditions of this Agreement and shall conductits business in such a manner as to not cause a violation of any of the provisions of thisAgreement or any of the policies which ORBCOMM may establish from time to time concerningAgents or the marketing of ORBCOMM Services;          (ii) 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 Reseller set forth in Section 8(a); and          (iii) such Person shall agree in writing to indemnify and hold harmless ORBCOMM and itsAffiliates and their respective stockholders, members, officers, directors, employees,agents and representatives against all claims, demands or liabilities (including reasonableattorney’s fees and out-of-pocket expenses) arising from or in connection with (A) suchPerson’s breach of its representations, warranties, covenants or agreements made to ORBCOMMor Reseller or (B) such Person’s actions or omissions as an Agent of Reseller;and provided further, that such agreements in writing shall contain enforceable provisions makingORBCOMM a third party beneficiary thereof, to the extent ORBCOMM is not a direct party thereto.          (b) Termination. Reseller shall terminate any Agent, promptly upon the request ofORBCOMM, if such Agent fails to observe or perform any of its covenants and agreements as anAgent, including those covenants and agreements set forth in Section 12(a) above.**SECTION 13**— **DEFAULT**          The following events shall constitute events of default (“Events of Default”) under thisAgreement: (a) Reseller fails to pay any amount to ORBCOMM when due as set forth in Section 7; (b)Reseller, any of its Agents or any of its Subscribers shall fail to observe, perform or comply, inany material respect. with any of the covenants or agreements contained in Section 2, Section10(a) or (b), or Section 11; (c) Reseller or any of its Agents shall materially fail to observe,perform or comply with any of its covenants or agreements contained in this Agreement (other thanas specified in Section 13(b)) and such failureremains uncured for a period of thirty (30) days after receipt by thebreaching party of written notice of such failure or); or (d) any
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representation, covenant or warranty made by or on behalf of Reseller (or any Agent)contained in this Agreement or in any other agreement in connection therewith shall prove to beincorrect, false or misleading on the date as of which they were made or deemed to have beenmade.**SECTION14 — TERMINATION**     (a) Right to Terminate. Upon the occurrence of an Event of Default, thenon-defaulting party shall have the right to terminate this Agreement by giving notice oftermination to the defaulting party. The parties agree that the definitions set forth in Section1, Reseller’s obligation to pay any and all amounts due and owing by Reseller under this Agreementprior to the expiration or termination of this Agreement and the covenants, agreements andobligations of the parties in Sections 6(d), 7, 8, 11(g)(iii), 14, 15, 16, 17 and 18 hereof shallsurvive the expiration or termination of this Agreement.     (b) Right to Contact Subscriber. Upon termination of this Agreement by ORBCOMM,ORBCOMM shall be entitled to contact each Subscriber, if any, for the purpose of advising suchSubscriber as to how such Subscriber may maintain access to the ORBCOMM System after terminationof this Agreement. In such event or upon expiration of this Agreement, Reseller (i) shallcooperate with ORBCOMM to enable all Subscribers to continue to have access to the ORBCOMM Systemwith minimal disruption, including, but not limited to, arranging for another reseller or ORBCOMMto provide ORBCOMM Services to such Subscriber or (ii) shall promptly provide ORBCOMM withsufficient information on Reseller’s Subscribers so that ORBCOMM can arrange for the provision ofORBCOMM Services to such Subscribers, provided that ORBCOMM shall be under no obligation (A) toensure that any such Subscriber is able to continue to have access to the ORBCOMM System or (B) toarrange for any transfer of equipment owned or leased by Reseller.     (c) No Liability. In the event ORBCOMM terminates this Agreement pursuant to anEvent of Default, ORBCOMM may terminate or temporarily discontinue furnishing service to Resellerwithout incurring any liability to Reseller or its Agents or Subscribers. Reseller shall indemnifyand hold harmless ORBCOMM from any such liability for such termination or temporarydiscontinuation of service to Reseller’s Subscribers.     (d) Without Prejudice. Termination of this Agreement by ORBCOMM shall be withoutprejudice to any other rights or remedies ORBCOMM shall have at law or equity.     (e) Responsibility for Obligation to Subscribers. After termination of thisAgreement, Reseller shall remain solely responsible for all obligations to its Subscribers andshall remain liable for payment of all amounts due pursuant to Section 7 and all accrued butunbilled fees due pursuant to Section 7 through and including the date of termination.     (f) Cancellation of Order. Upon the giving or receiving of any notice oftermination, ORBCOMM shall be entitled to, without liability, cancel any previously acceptedorders to provide ORBCOMM services to new Subscribers that have not yet been activated.
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     (g) Return of Equipment and Documents. Upon termination, Reseller shall promptlyreturn to ORBCOMM (i) any ORBCOMM equipment, other than equipment that has been paid for in frillby Reseller, and (ii) originals and any copies of the ORBCOMM Graphic Identity Manual, anymarketing 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 oftheir destruction.     (h) Transition Period. ORBCOMM acknowledges that the ORBCOMM Service is vital toReseller. In the event that this Agreement is terminated by ORBCOMM for a reason other than forReseller’s failure to pay amounts due pursuant to this Agreement, pursuant to an Event of Defaultset forth in Section 13(a) or Reseller’s violation of law, or terminated for any reason byReseller, ORBCOMM agrees to provide access to the ORBCOMM System (pursuant to the terms of thisAgreement) only to those Subscriber Communicators provisioned on the ORBCOMM System on account ofReseller prior to such termination for a period of up to sixty (60) months, upon Reseller’swritten request, to permit Reseller to transition the Subscribers to alternate service providers(the “Transition Period”). Reseller shall be liable to ORBCOMM for payment of all charges forORBCOMM Services provided during the Transition Period. Provided Reseller is not in default,ORBCOMM agrees to make commercially reasonable efforts to maintain the level and quality ofORBCOMM Service provided by ORBCOMM during the Transition Period and to cooperate with Reseller’stransition to a new service provider.**SECTION 15 — PROPRIETARY INFORMATION, NON-DISCLOSURE AND NON-SOLICITATION.**     (a) Proprietary Information. For purposes of this Agreement, “ProprietaryInformation” means information of any kind in written, documentary or other tangible formdisclosed by ORBCOMM or Reseller 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 intangible form, is clearly identified as confidential at the time of the disclosure, including, butnot 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 oranalyses prepared by or on behalf of the receiving party that contain, summarize or are based uponany of the foregoing. The parties hereby agree that Subscriber Information and any ProprietaryInformation (as defined in the Mutual Non-disclosure Agreement signed by the parties) isProprietary Information for purposes of this Agreement. Proprietary Information shall not includeinformation that (1) is publicly available prior to the date of this Agreement, (ii) becomespublicly available after the date of this Agreement through no wrongful act of the receivingparty, (iii) is furnished to others by the disclosing party without similar restrictions on theirright to use or disclose, (iv) is rightfully known by the receiving party without any proprietaryrestrictions at the time of receipt of such information from the disclosing party or becomesrightfully known to the receiving party without proprietary restrictions from a source other thanthe disclosing party or (v) is
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independently developed by the receiving party by persons who did not have access, directlyor indirectly, to the Proprietary Information.     (b) Non-Disclosure. Except as provided for herein, from the Effective Date of thisAgreement until three (3) years following the date on which Reseller ceases to be a reseller ofORBCOMM Services, the receiving party shall protect all of the disclosing party’s ProprietaryInformation as confidential and proprietary information and, except with the prior written consentof the disclosing party or as otherwise specifically provided herein, shall not disclose, copy ordistribute such Proprietary Information to any other individual, corporation or entity. It shallnot be deemed a breach of this Agreement if the receiving party produces the ProprietaryInformation under order of a court of competent jurisdiction or a valid administrative, arbitral orcongressional subpoena, provided that the receiving party promptly notifies the disclosing party ofsuch event so that the disclosing party may seek an appropriate protective order.     (c) Representatives. The receiving party shall not disclose all or any part of thedisclosing party’s Proprietary Information to any Affiliates, Agents, officers, directors,employees or representatives (collectively, “Representatives”) of the receiving party except on aneed-to-know basis. The receiving party agrees to inform any of its Representatives who receivethe disclosing party’s Proprietary Information of the confidential and proprietary nature thereofand of such Representative’s obligations with respect to the maintenance of such ProprietaryInformation in conformance with the terms of this Agreement.     (d) Degree of Care. The receiving parry shall use the same degree of care to protectthe confidentiality of the Proprietary Information disclosed to it as it uses to protect its ownProprietary Information, but in all events shall use at least a reasonable degree of care. Eachparty represents that such degree of care provides adequate protection for its own proprietaryinformation. The receiving party shall immediately advise the disclosing party in writing of anymisappropriation or misuse by any person of the disclosing party’s Proprietary Information ofwhich the receiving party is aware.     (e) Return of Proprietary Information. All Proprietary Information that is furnishedby or on behalf of the disclosing party, including, without limitation, any copies of suchmaterials, shall be promptly returned by the receiving party to the disclosing party upon writtenrequest by the disclosing parry for any reason. Any documents or materials prepared by or onbehalf of the receiving parry (including, without limitation, reports, memoranda, notes, files oranalyses, whether in written or electronic form) which contain Proprietary Information, includingall copies, shall promptly be destroyed by the receiving party upon written request by thedisclosing party for any reason. Such destruction shall be certified by an officer of thereceiving party.     (f) No License or Warranties. Except as set forth in this Agreement, no license tothe receiving party under any trade secrets or patents is granted or implied by conveyingProprietary Information or other information to such parry, and none of the informationtransmitted or exchanged shall constitute any representation, warranty, assurance, guaranty orinducement with respect to the infringement of patents or other rights of others. In addition,
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the disclosure of Proprietary Information by the disclosing party shall not constitute orinclude any representation or warranty as to the accuracy or completeness of such information.     (g) Non-Solicitation. Except as provided for herein, from the Effective Date ofthis Agreement until three (3) years following the date on which Reseller ceases to be a resellerof ORBCOMM Services, ORBCOMM shall not solicit with a view to selling ORBCOMM Services to anySubscriber of Reseller as a result of ORBCOMM being given the Subscriber Information by Resellerpursuant the terms of this Agreement or otherwise.**SECTION 16 — DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY**     (a) Disclaimer of Warranties.     TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF ORBCOMM OR ANY OF ITS AFFILIATESHAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECTTO THE ORBCOMM SYSTEM OR THE ORBCOMM SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ORBCOMM AND ITS AFFILIATES EXPRESSLY DISCLAIM WITH RESPECT TO RESELLER AND ITS AGENTS ANDSUBSCRIBERS, AND RESELLER (ON ITS OWN BEHALF AND ON BEHALF OF ITS AGENTS AND SUBSCRIBERS) HEREBYEXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES OF ORBCOMM AND ITS AFFILIATES ARISING ATLAW, EQUITY OR OTHERWISE, WITH RESPECT TO, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTYOF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROMCOURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY WARRANTIES AS TO THE ACCURACY,AVAILABILITY OR CONTENT OF THE ORBCOMM SYSTEM OR THE ORBCOMM SERVICES; AND (D) ANY WARRANTY UNDERANY THEORY OF LAW OR EQUITY, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHERLEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOTLIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, THAT IS NOT CONTAINED IN THISAGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ORBCOMM.     (b) Limitation of Liability.     (i) UNDER NO CIRCUMSTANCES SHALL ORBCOMM BE LIABLE TO RESELLER FOR INCIDENTAL, INDIRECT,SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR LOSS OFGOODWILL, LOSS OF USE OF EQUIPMENT OR SERVICES, OR DAMAGES TO BUSINESS OR REPUTATION, WHETHERFORESEEABLE OR NOT ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE BY ORBCOMM OF ANY ASPECT OFTHIS AGREEMENT WHETHER IN CONTRACT OR TORT OR
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OTHERWISE, AND WHETHER THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDEDTHAT THIS LIMITATION SHALL NOT APPLY TO THIRD PARTY CLAIMS FOR SUCH DAMAGE THAT ARE SUBJECT TOINDEMNITY OBLIGATION HEREIN. In addition, without limiting the generality of the foregoing,Reseller acknowledges and agrees that it shall have no right of recovery for the satisfaction ofany cause whatsoever, arising out of or relating to this Agreement, against (a) any Affiliate ofORBCOMM, (b) any supplier of services or equipment used in the provision of the ORBCOMM Servicesin any circumstances in which ORBCOMM or its Affiliates would be obligated to indemnify thesupplier, or (c) any officer, director, employee, agent, partner or shareholder of ORBCOMM or itsAffiliates.     (ii) Reseller acknowledges that interruptions of ORBCOMM Services may occur from time to timeas the result of, among other things, (A) placing Subscriber Communicators in locations thatpreclude a Subscriber Communicator’s visibility to the ORBCOMM System satellites (e.g., in atunnel), and (B) topographical and other conditions. Reseller acknowledges that serviceinterruptions are difficult to assess as to cause or resulting damages. The parties agree that,except as provided in Section 5(e), ORBCOMM and its Affiliates shall not be liable to Reseller,its Agents or Subscribers for any losses or damages arising out of any failure or impairedperformance of, error, omission, interruption, deletion, defect, delay in operation ortransmission, communication line failure, theft or destruction or unauthorized access to,alteration of, or use of records, associated with the ORBCOMM System or any component thereof,whether for breach of contract, tortious behavior, negligence or under any other cause of action.     (iii) None of ORBCOMM or any of its Affiliates shall be liable for any act or omission ofReseller, any of its Agents or any other person or entity furnishing equipment, products orservices to Reseller or its Agents or Subscribers, nor shall ORBCOMM or its Affiliates be liablefor any damages or losses of any kind whatsoever due to any act or omission of Reseller or itsAgents or Subscribers or the failure of such equipment, products or services.     (iv) The aggregate liability of ORBCOMM and its Affiliates arising out of, in connection withor relating to this Agreement shall be limited to direct damages proven in an amount not to exceedTen Thousand U.S. Dollars (US$10,000).     (v) Reseller has accepted the limitations of liability set forth herein as part of theexchange of consideration under this Agreement and expressly acknowledges that the prices for theORBCOMM Services would be higher if ORBCOMM were requested to bear additional liability fordamages.**SECTION17 — DISPUTE RESOLUTION**     (a) Arbitration. (1) Except as provided for in Section 18(d)(ii) and 18(k), anycontroversy or claim arising out of, in connection with or relating to this Agreement includingwithout limitation any disputes as to the formation or subject matter hereof, shall be settled by
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final and binding arbitration administered by the American Arbitration Association under itsCommercial Dispute Resolution Procedures (the “Rules”). Such arbitration shall take place in NewYork City before a single arbitrator selected pursuant to such Rules. The arbitrators’ award shallinclude an allocation of arbitration fees, expenses and compensation, and may include an award tothe prevailing parry of its attorney’s fees, costs and expenses in connection with thearbitration.     (ii) Any proceedings ancillary to the arbitration, including without limitation any action orproceeding to enforce the arbitrator’s award or judgment entered thereon, shall be brought in theSupreme Court of the State of New York, County of New York or the United States District Court forthe Southern District of New York, the courts having exclusive jurisdiction thereof, each partyhereby consenting to the exclusive jurisdiction of such courts over it and waiving, to the fullestextent 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 awardshall be determined in accordance with the law and practice of such forum courts.     (b) Exclusivity. The rights of the parties under this Section 17, Section 18(d)(ii)and Section 18(k) shall be the exclusive dispute resolution mechanisms with respect to any claimor controversy under this Agreement.**SECTION 18 — MISCELLANEOUS**          (a) Notices. All notices and other communications hereunder shall be in writing andshall 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 beingsent by registered or certified mail, return receipt requested, postage prepaid, to the parties atthe 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****:**ORBCOMM Inc.