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Launch Period No. 1
    
    [***...***], 2010  [***...***]Launch Period No. 2
    
    [***...***]  [***...***]Launch Period No. 3
    
    [***...***]  [***...***]Launch Period No. 4
    
    [***...***]  [***...***]Launch Period No. 5
    
    [***...***]  [***...***], 2014
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(a)
    
    Neither Party shall be liable for any delay in the performance of its obligations under
this Agreement in the event such delay or failure to perform is due to an Excusable Delay
and provided that the affected Party seeking to invoke this Section 11.1 notifies the other
Party in writing within five (5) Business Days of the occurrence of an Excusable Delay,
including a reasonable description of the causes thereof and such Parties efforts to avoid
the Excusable Delay or mitigate the impact thereof. If the Excusable Delay occurs during
the Launch Slot for any Launch Service to be provided under this Agreement, the affected
Party seeking to invoke this Section 11.1 shall notify the other Party immediately, and as
soon as possible thereafter, provide the information detailed in the immediately preceding
sentence. Failure by either Party timely to obtain any required governmental license,
permit or authorization shall not be deemed an Excusable Delay.(b)
    
    Subject to Section 16, the period of performance under this Agreement with respect to
the affected Launch Service(s) shall be extended by the duration of the Excusable Delay and
Customers obligation to make payments hereunder with respect to Launch Services due during
the period of an Excusable Delay shall be extended for a period equal to the duration of
the Excusable Delay without late payment interest. Such extension period will be reasonably
agreed to by both Parties in writing.
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(a)
    
    Except as otherwise set forth above with respect to a delay following [***...***],
nothing for the first three hundred sixty-five (365) Days;(b)
    
    [***...***]; and(c)
    
    [***...***].
   (a)
    
    [***...***];(b)
    
    [***...***]; and(c)
    
    [***...***].
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14. LIMITATION OF LIABILITY.
 14.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, FOR THE COST OF PROCUREMENT
OF SUBSTITUTE PRODUCTS OR SERVICES, WITH THE EXCLUSION OF THE REFLIGHT LAUNCH SERVICES TO THE
EXTENT THE REFLIGHT OPTION IS PURCHASED BY CUSTOMER, OR FOR LOST REVENUES OR PROFITS, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT, HOWSOEVER CAUSED AND REGARDLESS OF THE THEORY OF
LIABILITY, WHETHER BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT
LIABILITY, OR ANY OTHER THEORY OF LIABILITY.
 14.2 TOTAL LIABILITY. EXCEPT IN INSTANCES OF WILLFUL MISCONDUCT, SPACEXS TOTAL AND CUMULATIVE
LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT HOWSOEVER CAUSED AND REGARDLESS OF
THE THEORY OF LIABILITY, WHETHER BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, PRODUCT
LIABILITY, AND STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED .
 14.3 WARRANTIES. EXCEPT FOR AND TO THE EXTENT OF THE REFLIGHT OPTION (IF PURCHASED BY CUSTOMER),
SPACEX HAS NOT MADE, NOR DOES IT MAKE, ANY REPRESENTATION OR WARRANTY, WHETHER WRITTEN OR ORAL,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF DESIGN, OPERATION,
QUALITY, WORKMANSHIP, SUITABILITY, RESULT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE FALCON 1E, LAUNCH SERVICES, OR ASSOCIATED EQUIPMENT AND SERVICES. ANY IMPLIED
WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY EXPRESSLY DISCLAIMED.
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(a)
    
    Termination for Convenience. Customer may terminate for its convenience at any time,
for any reason or no reason, this Agreement in whole or in part, or any Launch Service
remaining to be performed under this Agreement, subject to a termination for convenience
fee retained by SpaceX as specified in either: (i) Appendix 5 in the case where each and
every Launch Service as of the date of termination is not a Launch Failure, or (ii)
Appendix 6 in the case where one or more Launch Service as of the date of termination is a
Launch Failure, which amounts SpaceX shall retain without further obligation or liability
to Customer, and subject to retention by SpaceX of all amounts previously earned hereunder.SpaceX shall refund amounts, if any, owed to Customer within thirty (30) Days of
receiving its written notice of termination for convenience. In the event that payments
received by SpaceX as of the date of Customer termination hereunder are less than the
amount reflected in Appendix 5 or 6 as applicable, Customer shall, within thirty (30)
Days, remit to SpaceX any balance owed. The applicable amount set forth as a
termination fee in this Section 16.2 is the fee charged to excuse Customers
non-performance. Customer and SpaceX agree that the applicable amount set forth above
does not constitute a penalty or estimate of future damages, but is a reasonable fee for
SpaceX excusing Customer non-performance at various points in
time (Termination Fee). For the avoidance of doubt, calculation of the Termination Fee
is limited to the applicable Launch Service(s) and: (i) does not include the payments
earned by SpaceX for previous Launch Services performed under this Agreement (as
consistent with, Section 5.2.1 of this Agreement); (ii) once calculated, will be reduced
by offsetting any amounts paid by Customer and received by SpaceX in connection with any
Launch Services yet to be performed; and (iii) applies to cancel the remaining Launch
Services to be performed under this Agreement, and shall not apply or affect Customers
option and SpaceXs obligation with respect to performance of any Reflight Launch
Service.
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(b)
    
    With respect to each Launch Service, in the event SpaceX has claimed one or more
Excusable Delays under Section 11.1 and such Excusable Delays have continued for a
continuous or cumulative period exceeding [***...***] Customer shall have the option to
either substitute the Payload with a substantially similar payload or apply all payments
made under this Agreement with respect to the particular Launch Service to a future mission
to be contracted by the Parties within thirty (30) Days of written notice. Notwithstanding
the foregoing, if SpaceX has claimed one or more Excusable Delays under Section 11.1 and
such Excusable Delays have continued for a continuous or cumulative period exceeding
[***...***], Customer shall be entitled to terminate any Launch Services not performed by
SpaceX and receive a refund of all payments made under this Agreement for the particular
remaining Launch Service(s) (excluding any payments earned by SpaceX pursuant to Section
5.2.1 for having completed a Launch Service), within thirty (30) Days of corresponding
notice of termination.
 (c)
    
    With respect to each Launch Service, in the event SpaceX has postponed or provided
notice of postponement of the Launch Services, other than for Excusable Delays, for a
continuous or cumulative period exceeding [***...***] beyond the Launch Date for the first
Launch Service, and [***...***] beyond the Launch Date for subsequent Launch Services,
Customer shall have the option to either substitute the Payload with an alternative payload
or receive a refund of all payments made under this Agreement for the particular Launch
Service (excluding any payments earned by SpaceX pursuant to Section 5.2.1 for having
completed a Launch Service), within thirty (30) Days of notice of termination, as the case
may be;
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(d)
    
    In the event of a material breach by SpaceX of its obligations under this Agreement,
and if, after having been given written notice of the same by Customer, SpaceX fails to
cure such material breach within [***...***]of receipt of such notice, SpaceX shall
refund all payments made by Customer under this Agreement, except for the payments
earned by SpaceX pursuant to Section 5.2.1 for having completed a Launch;(e)
    
    [***...***](f)
    
    [***...***]
  (a)
    
    SpaceX shall have the right to terminate this Agreement or any Launch Service(s) not
yet provided under this Agreement and retain all payments made hereunder without further
obligation or liability to Customer if Customer fails to comply with any of its material
obligations set forth in this Agreement or the SOW, to include non-payment of outstanding
invoices, after Customer is given written notice of noncompliance and a [***...***] period to
cure such non-compliance and fails to cure such non-compliance within such period.
 (b)
    
    SpaceX shall have the right to terminate this Agreement and retain all payments made in
accordance with the terms of this Agreement, without further obligation or liability to
Customer upon thirty (30) Days prior written notice to Customer in the event that Customer
fails to deliver the Payload for the subsequent Launch to the Launch Site within [***...***]
of the corresponding Launch Date as initially scheduled.
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th
  
  
 
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1.
    
    Articles 1 to 322.
    
    [***...***]3.
    
    [***...***]4.
    
    [***...***]5.
    
    [***...***]6.
    
    All other Appendices and Exhibits to this Agreement.
    28




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[SIGNATURE PAGE FOLLOWS]
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Space Exploration Technologies Corp.
    
    
    
    ORBCOMM Inc.By:
    
    /s/ [Gwynne Shotwell]
    
    
    
    By:
    
    /s/ [Marc Eisenberg]Name:
    
    Gwynne Shotwell
    
    
    
    
    
    Name:
    
    Marc EisenbergTitle:
    
    President
    
    
    
    
    
    Title:
    
    Chief Executive OfficerDate:
    
    8/28/2009
    
    
    
    Date:
    
    8/28/2009
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EXHIBIT 1
 Form of Cross-Waiver Required by the U.S. Licensing Authority
 Waiver of Claims and Assumption of Responsibility for Licensed Launch, including Suborbital Launch
   Contractors and Subcontractors Customer
 License
 Licensee
 United States
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In witness whereof,
 LicenseeBy:Its:CustomerBy:Its:
  By:Its:
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