ORBCOMM^® Equipment sale terms and conditions

For clarity, Solution Providers (“SP”) and Distribution Partners (“DP”) are each referred to herein as “Customer.” For agreements with SPs and DPs, “Equipment” shall mean “Products,” and “Data Services” shall mean “Network Services.”

1. Delivery
   • Delivery of the Equipment shall be Ex Works (INCOTERMS 2020) from the location of ORBCOMM’s contract manufacturer or distribution facility. Title to and risk of loss of or damage to the Equipment shall pass to the Customer when the Equipment is made available to Customer or Customer’s designated common carrier at the point of delivery.
   • Customer shall take full delivery of the quantities specified in the Order or Exhibit A, as applicable, within one (1) year from the order date, or as otherwise specified in the Order or Exhibit A.
   • If Customer fails to take delivery of the Equipment on the scheduled delivery date or after notification that the Equipment is available for pickup or shipment, ORBCOMM may, at its option, store the Equipment at Customer’s sole risk and expense. Customer shall be responsible for all costs associated with storage, including warehouse fees, handling charges, insurance, and related expenses. Custom Equipment shall be subject to an additional storage fee equal to twenty-five percent (25%) of the total purchase price of the affected Equipment.
   • Any attempt by Customer to cancel all or part of an order shall be deemed a material breach. Without waiving any rights or remedies, including applicable Termination Fees or similar fees, ORBCOMM may, in its sole discretion, agree to accept such cancellation, subject to the following:
   • for stock Equipment, a restocking fee equal to fifteen percent (15%) of the total purchase price of the affected Equipment; and
   • for custom Equipment, reimbursement of all non-recoverable costs incurred by ORBCOMM, including without limitation costs for raw materials, components, and third-party obligations.
2. Shipping
   • Arrangement and cost ORBCOMM will, at no additional charge to the Customer, package the Equipment according to ORBCOMM’s customary standards for domestic or international shipments, as applicable. ORBCOMM may, at Customer’s request, arrange shipment of the Equipment by ORBCOMM’s choice of carrier. If ORBCOMM arranges shipment on Customer’s behalf, Customer shall be solely responsible for all associated shipping, handling, freight, and special packaging costs, and shall reimburse ORBCOMM for all such amounts in accordance with the payment terms set forth in the Agreement. Any assistance provided by ORBCOMM in arranging shipment shall be solely for Customer’s convenience and shall not affect the transfer of title or risk of loss.
   • Insurance Customer is responsible for insuring the Equipment in transit, if desired. ORBCOMM will arrange insurance in transit for Customer upon Customer’s written request and at Customer’s expense.
   • Customs clearance and duties For international shipments, customs clearance is the responsibility of the Customer and duties and any customs clearance or customs brokerage fees, or charges are to be paid directly by the Customer.
   • Partial and advance deliveries ORBCOMM may make partial and advance deliveries in its sole discretion without penalty. Delivery dates are approximate; however, ORBCOMM will use commercially reasonable efforts to meet scheduled delivery dates and will notify Customer of any anticipated delays.
3. Security Interest
   For agreements with ORBCOMM LLC, ORBCOMM reserves, and Customer hereby grants ORBCOMM, a purchase money security interest in each unit of Equipment, resulting in ORBCOMM having all rights of a secured creditor under the Uniform Commercial Code as enacted in New York (“UCC”) with respect thereto until such time as all Customer's payments and obligations for all Equipment ordered have been fully discharged. Customer agrees to execute and deliver any additional document or instrument ORBCOMM may reasonably request from time to time to evidence or perfect its security interest in the Equipment. Without limiting the foregoing, Customer agrees that ORBCOMM is authorized to file or record in any jurisdiction, without Customer's signature, any applicable financing statement under the UCC with respect to its interest in the Equipment. If Customer is in default of any obligation hereunder, or if a proceeding in bankruptcy, dissolution, liquidation, insolvency, receivership, or reorganization is instituted by or against Customer, Customer’s property, or business, then ORBCOMM shall have the right to declare the unpaid balance owing under any orders to be payable immediately, and to take immediate possession of the Equipment or any portion thereof without demand, further notice, or legal process.
4. Prices
   Equipment pricing is set forth in the Order and is for the specified items of Equipment only and does not include any optional Equipment or accessories not listed in ORBCOMM’s official description of the selected SKU or any Data Services or Professional Services. Pricing does not include installation or training. Additional fees, as set forth in the Order, apply including but not limited to fees for special or non-standard Customer requests such as requests for delayed shipment or shipment holds.
5. Limitations of technology/equipment
   • Customers acknowledge the following inherent technical limitations relating to Equipment use. The existence of unfavorable conditions, such as weather and geographical factors and other atmospheric conditions can interrupt Equipment functionality and interfere with complete service area coverage at all times. Other environmental issues including, but not limited to service interruptions, poor coverage areas, network congestion, roaming and other wireless access issues may affect Equipment performance. Moreover, if Equipment is moved out of an available service area, communication with that Equipment will be unavailable until it returns to the available service area. In addition, the GPS antenna in Equipment must have a radio frequency link to the GPS satellites in order to function properly. The Equipment has many complex elements and are not guaranteed against eavesdroppers, hackers, service attacks, viruses, or interception. Customer agrees to inform all users of Equipment, that ORBCOMM shall not be liable for any lack of privacy or security resulting from use of the Equipment.
   • The Equipment is based on technology which may become obsolete in the future as a result of changes in wireless technology or actions by telecom regulators. In such event, ORBCOMM shall have no obligation to issue a refund or furnish replacement Equipment.
6. Limited warranty and disclaimers
   • ORBCOMM warrants to Customer that on the date each unit of Equipment is shipped, it shall comply with the applicable ORBCOMM SKU description and be free from defects in material or workmanship, subject to the terms and conditions set forth in the remainder of this section (the “Warranty”). This Warranty, subject to the Warranty Policy found at https://www.orbcomm.com/en/terms-and-conditions-docs/warranty-policy, which may be amended from time to time, shall apply only to defects which appear within twelve (12) months from the earlier of the date of Activation or ninety (90) days from date of shipment (in each case, the “Initial Warranty Period”), and of which Customer notifies ORBCOMM in writing within thirty (30) calendar days after Customer’s discovery of the defect. At Customer’s option and expense, Customer may purchase an extended warranty from ORBCOMM with respect to a particular unit of Equipment (the “Extended Warranty”). The terms, conditions, and procedures of the Extended Warranty are otherwise the same as those of the Warranty. The Customer’s purchase of an Extended Warranty will be indicated in the applicable Order.
   • ORBCOMM MAKES NO WARRANTIES OTHER THAN THAT EXPRESSLY STATED IN THIS SECTION. ORBCOMM DISCLAIMS ALL OTHER WARRANTIES AND STATUTORY OR OTHER IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR TITLE; IMPLIED WARRANTIES AGAINST CLAIMS OF PATENT INFRINGEMENT OR THE LIKE; AND ANY IMPLIED WARRANTY OR VARIANCE FROM THE TERMS OF THE EXPRESS WARRANTY STATED HEREIN ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT ORBCOMM TO DISCLAIM ANY PARTICULAR IMPLIED WARRANTY, THE TERM OF SUCH IMPLIED WARRANTY IS LIMITED TO THE TERM OF THE EXPRESS WARRANTY STATED HEREIN AND CLAIMS UNDER SUCH IMPLIED WARRANTY ARE SUBJECT TO THE PROCEDURES STATED HEREIN FOR CLAIMS UNDER THE EXPRESS WARRANTY.