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EXHIBIT 10.94
Supplemental Agreement (SA) 01
2 September 1998
COST PLUS INCENTIVE FEE CONTRACT
NUMBER SHB 1014
AUGUST 14, 1997
FOR
MULTIPLE MISSION INTEGRATION AND OPERATION (I&O) SUPPORT
BETWEEN
XXXXXXXXX XXXXXXX CORPORATION,
A WHOLLY-OWNED SUBSIDIARY OF
THE BOEING COMPANY
000 XXXXXX XXXXXXXXX
XXXXXXXXXX, XXXXXXX 00000
AND
SPACEHAB, INCORPORATED
0000 XXXXXX XXXX XXXX
XXXXX 000
XXXXXX, XXXXXXXX 00000
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Supplemental Agreement (SA) 01
2 September 1998
TABLE OF CONTENTS
Article 1 - Entire Agreement..........................................1
Article 2 - Definitions...............................................1
Article 3 - Scope of Work.............................................1
Article 4 - Studies/Analyses..........................................1
Article 5 - Period of Performance.....................................2
Article 6 - Contract Amount...........................................2
Article 7 - Payment...................................................3
Article 8 - Limitation of Funds.......................................3
Article 9 - Supplies/Services and Delivery Schedule...................4
Article 10 - Title and Delivery........................................4
Article 11 - Packaging and Marking.....................................4
Article 12 - Inspection and Acceptance.................................5
Article 13 - Place of Performance......................................5
Article 14 - Items, Equipment, Property, Services to be Furnished
by SPACEHAB, Inc. And/or the Government on a
"No Charge" Basis.........................................5
Article 15 - Exchange of Technical Information.........................6
Article 16 - Excusable Delays..........................................6
Article 17 - Changes...................................................7
Article 18 - Amendments................................................8
Article 19 - Stop Work Orders..........................................8
Article 20 - Notices...................................................8
Article 21 - Key Personnel.............................................9
Article 22 - Termination...............................................9
Article 23 - Governing Law.............................................9
Article 24 - Arbitration/Disputes......................................9
Article 25 - Audit....................................................10
Article 26 - Indemnity Against Patent Infringement....................10
Article 27 - Limitation of Liability..................................11
Article 28 - Insurance and Indemnification............................10
Article 29 - MDC Employee Injury......................................11
Article 30 - Warranty.................................................11
Article 31 - Relationship of Parties..................................11
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Article 32 - Manned Space Flight Item.................................12
Article 33 - Order of Precedence......................................12
Article 34 - Technical Data...........................................12
Article 35 - Patent Rights............................................12
Article 36 - Use of Company Logo......................................12
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Supplemental Agreement (SA) 01
2 September 1998
THIS CONTRACT, by and between SPACEHAB, Inc. with an address at 0000 Xxxxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "SPACEHAB,
Inc." or "SHI") and XxXxxxxxx Xxxxxxx Corporation, A Wholly-Owned Subsidiary of
The Boeing Company, with an address at 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, (hereinafter referred to as "MDC"). (XxXxxxxxx Xxxxxxx Corporation
represents and warrants that it is acting on behalf of The Boeing Company and
that it has the corporate power and authority to legally add The Boeing Company
to the terms and conditions of this Contract.) The parties hereby agree as
follows:
Article 1 - Entire Agreement
This Contract, all exhibits and other documents incorporated herein by
reference, whether or not attached hereto, constitute the complete and exclusive
statement of the Contract between the parties hereto. This Contract supersedes
any previous understanding or agreement between SHI and MDC (oral or written)
with respect to the subject matter hereof. Further, this Contract constitutes a
definitization of Letter Contract SHB 1014 dated 14 August 1997 including
modifications thereto through Modification No. 24 dated 20 August 1998 between
SHI and MDC, subject to an equitable adjustment of Estimated Target Cost Plus
Target Incentive Fee resulting from these modifications.
Article 2 - Definitions
A. The term "MDC" shall include XxXxxxxxx Xxxxxxx Corporation, A
Wholly-Owned Subsidiary of The Boeing Company, formerly known as
XxXxxxxxx Xxxxxxx Aerospace - Huntsville.
B. The terms "General Agreement," "Basic Agreement," "Basic Terms and
Conditions," "Agreement" and "Contract" shall mean this Contract and
shall be deemed to include all exhibits, specifications, drawings, or
other documents incorporated herein by reference.
Article 3 - Scope of Work
MDC is the prime Contractor responsible for performance of all work set forth in
this Contract, including work to be performed by any subcontractor.
MDC shall perform the work identified in Exhibit A, "SPACEHAB Multi-Mission
Integration and Operations Contract Statement of Work, enclosed herein and made
a part hereof.
In accordance with the Statement of work requirements herein, it is intended
that MDC will perform the Integration and Operations of four (4) SPACEHAB
science missions (1 single module mission and 3 double module missions) and 5
SPACEHAB cargo double module missions aboard the NASA Orbiter within the
Contract period of performance and maintain accountability and operation of
SPACEHAB hardware which was developed by the Phase C/D Contracts SHB 1001, SHB
1010 and SHB 1013, or the I&O Contracts SHB 1002 and SHB 1009 between SHI and
MDC.
Article 4 - Studies/Analyses
A. Task Directives. As set forth in WBS 9.1.9.5 of the Statement of Work,
MDC will be required to perform Studies/Analyses as specified in
written Task Directives. Task Directives may be authorized solely by
the SHI personnel specified in Article 20 and will be jointly signed by
the appropriate MDC personnel. These directives shall define the scope
of work for the task to be performed, provide the time and place of
performance desired, provide the total funding
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authorized for this task by this Task Directive, and will provide such
other instructions as may be required to properly define the effort. No
work is to be performed under this clause unless authorized by a
Specific Task Directive.
B. The Studies/Services effort will be cost plus fixed fee of 12% and not
subject to the cost/fee sharing arrangement described in Article 6.
Funding authorization shall be issued annually on a SHI fiscal year
basis. Funding authorized for each study area and each SHI fiscal year
shall be defined in Exhibit D of this contract. If at any time during
the current year, MDC has reason to believe the effort will exceed the
authorized funding, MDC will notify SHI and furnish with such
notification, a new estimate of the total funding required. In the
event SHI desires to continue the effort, a contract change will be
issued authorizing the additional funding and the contract will be
adjusted. The annual level of effort under this article is anticipated
to be on the order of 5 to 10 equivalent personnel plus travel and
miscellaneous materials.
C. Financial Management. Costs incurred under this provision for Studies
shall be reported as a part of the 9.1.9.5 WBS, with expenditures
segregated by Task Directive in the Monthly Compliance Report.
Article 5 - Period of Performance
MDC shall perform the work called for under this Contract in accordance with the
agreed to Statement of Work as specified in Article 3 herein, including
preparation and submission of all reports, during the period of performance
beginning 14 August 1997 and continuing through 31 December 2002, and as may be
extended by mutual agreement.
Article 6 - Contract Amount
A. General. This is a Cost Plus Incentive Fee Contract. The following
estimated target cost and target incentive fee is established for the
effort required by the Contract for services as specified in Statement
of Work defined in Article 3 above and in accordance with the schedule
specified in Article 9 for nine (9) SPACEHAB missions. The amounts
include negotiated target cost and target incentive fee for
Modifications 3, 6, 11, and 12 to the Letter Contract.
Estimated Target Cost: $86,810,379
Estimated Target Incentive Fee: $10,365,680
Estimated Target Cost Plus Target Incentive Fee: $97,176,059
Estimated Studies Cost: $ 2,269,935
Estimated Studies Fixed Fee: $ 276,565
Total Estimated Contract Price: $99,722,559
B. Target Cost and Target Incentive Fee. The Target Cost and Incentive Fee
of 12% specified in Paragraph A above are subject to adjustment if the
Contract is modified in accordance with Article 6.C.2 below.
1. "Target Cost," as used in this Contract, shall mean the cost
of this Contract as initially negotiated, and as modified in
accordance with the Changes Clause of this Contract.
2. "Target Incentive Fee" as used in this Contract, shall mean
the fee that is subject to the Incentive formula, as described
in Article 6.C.1 below.
C. Fees payable.
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1. The Total Target Incentive Fee shall be payable under this
Contract in accordance with Article 7 below and shall be
increased by 30 cents for every dollar that the actual cost
incurred (exclusive of fees) is less than the Target Cost, or
decreased by 30 cents for every dollar that the actual cost
exceeds Target Cost. In no event shall the Total Target
Incentive Fee, as modified, be more than 15% or be less than
8% of the Total Target Cost.
2. Equitable Adjustment. When the work under this Contract is
increased or decreased by a modification to this Contract,
then the Target Cost and Incentive Fee shall be modified as
appropriate in a supplemental agreement to this Contract.
D. Estimated Studies Cost and Estimated Studies Fixed Fee specified in
Paragraph A above are allocated to specific studies areas under WBS
9.1.9.5 and to SPACEHAB fiscal years in accordance with Exhibit C
attached hereto. The specific amounts in Paragraph A above and in
Exhibit C are subject to adjustment in accordance with Article 4.B
above.
E. Facilities Capital Cost of Money. Facilities capital cost of money
shall be an allowable cost under this contract.
F. Exclusion of Taxes. The parties agree that no sales or use tax, either
Alabama or Florida has been included in the target cost. Sales or use
tax, if any, shall be subject to the Changes Clause of this Contract.
Article 7 - Payment
A. MDC shall submit invoices monthly for the payment of actual costs
incurred plus the Target Incentive Fee of 12%. Such invoices shall be
submitted to SHI at:
SPACEHAB, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Payment will be made by or on behalf of SPACEHAB, Inc. to:
XxXxxxxxx Xxxxxxx Corporation
P. O. Xxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Accounts Receivable
Such invoices shall be due and payable by SHI, 30 days after receipt of an
invoice. If any such invoice remains unpaid 45 days after receipt of such
invoice, MDC shall have the right to stop work under this Contract. If such
invoice continues to remain unpaid 60 days after receipt of such invoice, MDC
may at its option, consider SHI to have breached this Contract and may pursue
remedies as provided by law.
Article 8 - Limitation of Funds
A. The sum of $17,356,207 is presently available for payment and is
allotted to this contract covering the period of performance through 31
December 1998. It is anticipated that from time to time additional
funds will be allotted in writing to this contract up to the total
estimated contract price. When additional funds are allotted from time
to time for continued performance
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of the work under this contract, the parties shall agree on the
applicable period of performance which shall be covered by such funds.
B. MDC agrees to use its best efforts to perform, or have performed,
the work on this contract up to the point at which the total amount
paid and payable by SHI under the contract approximates but does not
exceed the amount specified in Paragraph (A). Unless otherwise agreed
in writing, SHI shall not be obligated to reimburse MDC for costs
incurred in excess of the total amount allotted by SHI to this contract
during the stated period of performance.
C. Upon expenditure of 85% of allotted funds set forth in Paragraph (A),
MDC shall notify SHI in writing as to the estimated amount of
additional funds required for the timely performance of the contract.
Such notice shall specify any additional funds and period of
performance required.
D. If, after the notification called for in Paragraph (C) above,
additional funds are not allotted to this contract, MDC may request
that this contract be terminated, in accordance with the provisions of
the Terminations Clause of this contract, and SHI shall comply.
E. MDC is not obligated to continue performance under this contract
(including actions under the Termination clause of this contract) or
otherwise incur costs, which when added to the applicable fee would be
in excess of the amount then allotted to the contract by SHI until SHI
notifies MDC in writing that the amount allotted has been increased.
Article 9 - Supplies/Services and Delivery Schedule
A. The scope of work to be performed under this Contract shall include,
the provision of all labor, materials, services, and equipment
necessary to perform the work as set forth in Exhibit A, SPACEHAB
Multi-Mission Integration and Operations Contract Statement of Work.
B. The flight schedule for which MDC shall provide services is as follows:
MISSION LAUNCH DATE
- Science 1, single module October, 1998
- Cargo 1, double module April, 1999
- Cargo 2, double module October, 1999
- Science 2, double module May, 2000
- Cargo 3, double module December, 2000
- Science 3, double module June, 2001
- Cargo 4, double module November, 2001
- Science 4, double module April, 2002
- Cargo 5, double module November, 2002
C. MDC shall submit on a monthly basis to SHI a compliance report mutually
agreeable to MDC and SHI which documents MDC's expenditures pertaining
to this contract.
Article 10 - Title and Delivery
The point of delivery for any hardware required shall be Cape Canaveral, Florida
USA. The point of delivery for any data required shall be SPACEHAB, Inc.,
Vienna, VA.
Article 11 - Packaging and Marking
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Packaging and marking for shipment of all items ordered hereunder shall be in
accordance with good commercial practice, and adequate to ensure both acceptance
by common carrier and safe transportation at the most economical rate(s).
Article 12 - Inspection and Acceptance
The place of final inspection and acceptance for the services and deliverable
hardware called for under this Contract shall be SHI's facility at Cape
Canaveral, Florida, or other designated place(s) or performance. The place of
inspection and acceptance of all deliverable reports and documentation shall be
at SHI, Vienna, VA with copy to SHI Houston, Texas and SHI Cape Canaveral, FL as
specified by SHI.
Article 13 - Place of Performance
MDC shall perform the work under this contract at its facility located in
Huntsville, Alabama, at SHI's facility located at Cape Canaveral, Florida, and
at any other locations as may be required.
Article 14 - Items, Equipment, Property, Services to be Furnished by SPACEHAB,
Inc. and/or the Government on a "No Charge" Basis
A. SHI and/or the Government shall furnish to MDC, for use in connection
with and under the terms of this contract on a "no-charge" basis, the
SHI and/or Government owned equipment, property, items, services, etc.
which are suitable for the intended use. SPACEHAB Furnished Equipment
(SFE) to be provided is identified in Exhibit B. Government Furnished
Property (GFP) to be provided is identified in Exhibit B.
B. Off nominal conditions, inadequacies, and delivery delays in SHI and/or
Government supplied items identified herein will be the basis for a MDC
Contract Change proposal and subsequent Contract amendment reflecting
the cost, fee, schedule, and technical impact of defective or late
delivery of SHI and/or Government supplied items.
C. MDC is authorized to commingle all material without physical
segregation or identification to the individual SHI contracts. The
applicability of NASA FAR 52.245-5 Government Property is agreed to
apply to Government furnished or owned equipment only and does not
apply to purchases under this Contract since it is understood that
title to all items provided under this Contract would vest with
SPACEHAB, Inc.
D. SPACEHAB Furnished Equipment as identified in Exhibit B will include
the following information:
- Acceptance Data Package (ADP)
- Functional capabilities
- Interface definition
- Environmental constraints
- Mechanical characteristics (dimensions, weight, c.g., etc...)
- Electrical power requirements (peak, start-up/in-rush,
profile, ...)
- Special requirements (commanding, downlink,...)
- Verification data (including safety data)
- Test requirements for processing/integration activities
- Operations requirements and procedures (flight and ground)
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Maintenance/repair of SFE that was designed and built by SHI will be
the responsibility of SHI. Boeing shall be responsible to report
hardware failures immediately to SHI via Material Review Record (MRR).
To do this, Boeing will perform trouble shooting to locate problem to,
but not within, the SFE component. Boeing support to SHI for trouble
shooting within the SFE component and shipping or repairing the
component will be authorized by task directive and is funded under the
Studies/Services element of the statement of work (Reference Article 4
and SOW paragraph 9.1.9.5).
Boeing shall be provided an ADP for all SFE at turnover. SFE hardware
and corresponding documentation shall be identified by part number
including revision level (and serial number when appropriate).
Changes/revisions post turnover (to Boeing) shall be accompanied by the
appropriate revised documentation and updated ADP.
Article 15 - Exchange of Technical Information
During the term of this Contract, SHI and MDC, to the extent of their right to
do so, agree to exchange all such technical and management information as may
reasonably be required for each to perform its obligations hereunder. To the
extent that proprietary information of either party is disclosed, such
information or data which is (i) submitted in writing, must be designated by an
appropriate stamp, marking or legend thereon to be of proprietary or
confidential nature, or (ii) orally submitted, must be identified as proprietary
or confidential prior to disclosure and the disclosing party notifies the
receiving party, in writing, specifically identifying any such proprietary or
confidential information so orally submitted within thirty days after such oral
submission. Notwithstanding termination or expiration of this Contract, each
party will keep in confidence and prevent the disclosure of all such proprietary
information and data, whether technical or commercial, to any third party.
Neither party shall be liable for disclosure of any such proprietary information
or data, if such information:
A. Was in the public domain at the time it was disclosed, or later becomes
part of the public domain other than throughout the action of the party
receiving it; or
B. Was known to the party receiving it at the time of disclosure; or
C. Is disclosed with the prior written approval of the other party; or
D. Is disclosed by the party providing the same, to others, on a
non-restricted basis; or
E. Is disclosed inadvertently despite the exercise of the same degree of
care that the receiving party takes to preserve or safeguard its own
proprietary information; or
F. Becomes known to the receiving party from a source other than the
disclosing party without breach of this Section by the receiving party;
or
G. Is disclosed one (1) year after expiration or termination of this
Contract; or
H. Is disclosed to a government agency for certification or export license
purposes, taking all reasonable precautions to prevent further
disclosure by such agency.
Article 16 - Excusable Delays
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Except for default of subcontractors at any tier, MDC shall not be in default
because of any failure to perform this Contract under its terms if the failure
arises from causes beyond the control and without the fault or negligence of
MDC. Examples of these causes include but are not limited to are (1) acts of God
or of the public enemy, (2) acts of Government in either its sovereign or
contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine
restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe
weather. In each instance, the failure to perform must be beyond the control and
without the fault or negligence of MDC. "Default" includes failure to make
progress in the work so as to endanger performance.
MDC shall not be in default, if the failure to perform is caused by the failure
of a subcontractor at any tier to perform or make progress, and if the cause of
the failure was beyond the control of both MDC and subcontractor, and without
fault or negligence of either, unless (1) MDC knew of other sources to obtain
the subcontracted supplies or services from to meet schedule; (2) SHI ordered
MDC in writing to purchase these supplies or services from the other source; and
(3) MDC failed to comply reasonably with this order.
If SHI determined that any failure to perform results from one or more of the
causes above, the delivery schedule shall be revised, subject to the rights of
SHI under the Termination Clause of this Contract.
Article 17 - Changes
A. SHI may at any time, by written order, and with such concurrence to not
be unreasonably withheld from MDC, make changes within the general
scope of this Contract in any one or more of the following:
(1) Description of services to be performed.
(2) Time of performance (i.e., hours of the day, days of the week,
etc.).
(3) Place of performance of the services.
(4) Drawings, designs, or specifications.
(5) Method of shipment or packing of supplies.
(6) Place of delivery.
(7) Types and amounts of SHI and/or Government-Furnished Property
to be provided.
B. If any such change causes an increase or decrease in the estimated cost
of, or the time required for, performance of any part of the work under
this contract, whether or not changed by the order, or otherwise
affects any other terms and conditions of this contract, SHI shall make
an equitable adjustment in the (1) estimated cost, delivery or
completion schedule, or both; (2) amount of fee; and (3) other affected
terms and shall modify the contract accordingly.
C. MDC shall assert its right to an adjustment under this clause within 60
days from the date of receipt of the written order. However, if SHI
decides that the facts justify it, SHI may receive and act upon a
proposal submitted before final payment of the contract.
D. Failure to agree to any adjustment shall be a dispute under the
Disputes Clause. However, nothing in this clause shall excuse MDC from
proceeding with the contract as changed.
E. Notwithstanding the terms and conditions of paragraphs (a) and (b)
above, the estimated cost of this contract and, if this contract is
incrementally funded, the funds allotted for the performance of this
contract, shall not be increased or considered to be increased except
by specific written modification of the contract indicating the new
contract estimated cost and, if this contract is incrementally funded,
the new amount allotted to the contract. Until this modification is
made,
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MDC shall not be obligated to continue performance or incur costs
beyond the point established in the Limitation of Funds Clause of this
Contract.
Article 18 - Amendments
Neither this Contract, nor any term or condition thereof, shall be amended or
changed in any manner except by an instrument in writing hereto, executed by
both parties acting through their duly authorized representatives.
Article 19 - Stop Work Orders
SHI may, at any time, by written order to MDC, require MDC to stop all, or any
part, of the work called for by this contract for a period of up to 90 days
after the order is delivered to MDC, and for any further period to which the
parties may agree. The order shall be specifically identified as a stop-work
order issued under this clause. Upon receipt of the order, MDC shall immediately
comply with its terms and take all reasonable steps to minimize the incurrence
of costs allocable to the work covered by the order during the period of work
stoppage.
Article 20 - Notices
A. Except as herein specifically provided otherwise, all notices, reports,
and other communications hereunder shall be given in writing either by
personal delivery, by first class mail, or by electronic transmission,
addressed to the respective parties as specified herein below.
B. The date upon which any such communication is personally delivered or,
if such communication is transmitted by mail or by electronic
transmission, the date upon which it is received by the addressee,
shall be deemed to be the effective date of such communication.
C. Each party shall promptly advise the other in the event of any change
in their respective addresses.
D. The SHI personnel authorized to issue written orders, in accordance
with the Changes Clause, are M.E. Xxxxxxx, X.X.Xxxxxx, or Xxxxx
Xxxxxxxx. The SHI personnel authorized to issue written Task Directives
in accordance with Article 4. are M. D. Xxxxxxx, X. X. Lounge, and X.
X. Xxxxxx.
The SHI personnel authorized to give technical direction are X. X.
Xxxxxxxx and X. X. Xxxxx.
E. The addresses of SHI and MDC, for the purpose of Paragraph A above, are
as follows:
FOR COMMUNICATION TO SPACEHAB, INC.
SPACEHAB, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx with copies to X.X.
Xxxxxxxx and X. X. Xxxxx.
When transmitted by mail: Same as above
When transmitted by electronic transmission:
Fax Number: (000) 000-0000
FOR COMMUNICATION TO MDC
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The Boeing Company
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Contract Administrator with copy to
SPACEHAB Program Manager
When transmitted by mail: Same as above
When transmitted by electronic transmission:
Fax Number: (000) 000-0000
Article 21 - Key Personnel
The personnel listed below are considered essential to the work being performed
under this contract. Before removing, replacing, or diverting any of the listed
personnel, MDA shall notify SHI in advance, and shall provide rationale
including identification and qualifications of candidate replacement, and shall
not remove, replace or divert such personnel without SHI's written consent,
which shall not be unreasonably withheld. In such event, the list of personnel
shall then be amended accordingly.
Key Personnel Title/Position
X. X. Xxxxx Director, SPACEHAB Program
E. L. Streams Senior Manager, SPACEHAB Product Engineering
X. X. Xxxx Senior Manager, SPACEHAB Multi Mission Integration and
Operations
X. X. Xxxxx Senior Manager, SPACEHAB Integration and Operations
W. A. Xxxxxx Senior Manager, SPACEHAB Safety and Mission Assurance
X. X. Xxxxxx Senior Manager, SPACEHAB Ground Operations
Article 22 - Termination
A. SHI may terminate this Contract at any time by written notice, in whole
or in part, if SPACEHAB, in its sole discretion, determines that a
termination is in its own best interest. SHI shall terminate by
delivering to the Contractor a Notice of Termination specifying the
extent of termination and the effective date. To minimize the cost of
effecting the termination in accordance with MDC policy, best efforts
shall be made by SHI to provide 60 to 90 days notice prior to the
effective date of termination.
B. In the event of a termination, SHI will reimburse MDC for all costs
incurred, including applicable fee and termination costs. For purposes
of the Termination Clause, incurred costs includes all outstanding
commitments not yet paid and for delivery of all hardware, software and
services, whether complete or incomplete, identified herein, to SHI.
Termination costs are those actual and reasonable costs incurred in
terminating the Contract including usual and customary severance pay
and other labor costs in the ordinary course of business or as
otherwise required by law, storage and protection costs, and costs of
settlement and termination of subcontracts.
C. SHI may terminate this contract if MDC fails to deliver the goods or
perform the services required by this contract within the time
specified and any extension thereto granted by SHI.
Article 23 - Governing Law
This agreement shall be governed by and interpreted in accordance with the law
of the State of Delaware.
Article 24 - Arbitration/Disputes
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Disputes arising out of the interpretation or execution of this contract which
cannot be resolved by negotiation shall, at the request of either Party, (after
giving 30 days notice to the other Party) be submitted to arbitration. The
arbitration tribunal shall sit in Huntsville, AL. Disputes shall be finally
settled in accordance with the Rules of Conciliation and Arbitration of the
American Arbitration Association by one or more arbitrators designated in
conformity with those Rules. The decision to submit a dispute shall not excuse
either party from the timely performance of its obligations hereunder which are
not the subject matter of the dispute. Further, if the lack of resolution of the
matter in dispute will adversely impact the timely completion of preparation for
launch activities, MDC and SHI will perform the matter in dispute in the manner
determined by SHI, within the framework of this Contract and without prejudice
to the final resolution of the matter in dispute.
Article 25 - Audit
A. MDC will maintain accurate records of labor hours expended, subcontract
xxxxxxxx and travel costs incurred by Cost Charge Number. Such records
shall be made available for inspection by an independent certified
public account retained by SHI during normal business hours for a
period of three (3) years after completion of this Contract.
B. MDC's books, records, documents and other supporting data shall be made
available to an independent certified public accountant retained by SHI
for inspection and audit as reasonably required in conjunction with the
negotiation of any changes hereunder, including termination claims.
C. In case of any dispute, the parties agree to continue Contract
performance pending resolution.
Article 26 - Indemnity Against Patent Infringement
A. MDC shall indemnify SHI against any liabilities or losses which SHI may
be required to pay in the case of any actual or alleged infringement of
any United States patent or any negotiation or litigation based
thereon, with respect to any products purchased pursuant to the terms
of this Contract unless such products are made to a specific and detail
design furnished by SHI which is not a modification of a MDC design.
Such liabilities or losses (i) include: (a) counsel fees, (b) cost of
replacing any infringing product with a suitable non-infringing
substitute or of otherwise curing any infringement, but (ii) do not
include any losses by SHI due to loss of use, at any time, of equipment
or component utilizing any of said products which are the subject of
any actual or alleged infringement.
B. With respect to any such actual or alleged patent infringement for
which MDC is obligated to indemnify SHI: (i) MDC shall, as soon as
practicable, report to SHI promptly and in reasonable written detail,
each notice of claim against MDC of patent infringement; and (ii) SHI
will notify MDC as soon as practicable after receipt by SHI of
appropriate notice of any charge of infringement or commencement of any
suit or action for infringement against SHI in either case, MDC shall
have the option to (a) conduct negotiations with the party or parties
charging infringement or (b) assume, conduct and control the defense of
any suit or action of infringement against MDC or SHI. In the event MDC
does not pursue either option, then SHI shall have the option to
conduct such negotiations and defense without expense or liability to
SHI as provided under Paragraph A. above.
Article 27 - Limitation of Liability
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In no event, shall MDC be liable under any legal or equitable theory (including
but not limited to contract, tort, negligence, or strict liability) for any
incidental or consequential damages, including but not limited to damages for
lost profits, lost sales, or loss of use of property.
Article 28 - Insurance and Indemnification
Upon delivery and final acceptance by SHI of a SPACEHAB module, SHI shall
indemnify and save harmless MDC, its subcontractors and any officers, directors,
employees, and agents of any of them from any liability and expense on account
of loss of damage to the property of third parties (including the US Government)
or bodily injury to any persons, including death, caused by or resulting from
the use of the goods furnished hereunder and/or arising from the provision of
services under this Contract excepting only such loss, damage, or injury caused
by the indemnities willful misconduct, and SHI shall defend any suits or other
proceedings brought against MDC and its subcontractors and the officers,
directors, employees, and agents of any of them on account thereof an shall pay
all expenses and satisfy all judgments which may be incurred or rendered against
them or any of them in connection therewith. MDC shall give SHI prompt written
notice of any claim of such loss, damage, or injury and shall cooperate with SHI
and its insurers in every reasonable way in defending against such claim. SHI
shall obtain insurance, naming MDC as an additional named insured, against such
liabilities to third parties as are referred to in this paragraph.
MDC shall indemnify SHI against any liability, loss, claim, and/or proceeding in
respect of personal injury to and/or death of any person, or loss or damage to
property, arising out of the performance of the Contract; but only if the same
is due to the negligent acts or omission of MDC, its employees or agents; or any
subcontractor, its employees or agents.
Article 29 - MDC Employee Injury
MDC shall indemnify and hold harmless SHI, its officers, agents, and employees
from any liability, loss or damage they may suffer as a result of death or
injury to any MDC employees connected with or related to the performance of
Contract work on SHI's premises, and which results from the negligence of MDC,
its officers, agents, or employees.
Article 30 - Warranty
A. MDC hereby warrants to SHI that all deliverables furnished under this
contract shall be free from defects in workmanship for a period of one
(1) year from the date of their acceptance. The cost of and associated
fees for remedies of any defects shall be paid pursuant to the payment
provisions of this contract. SHI shall notify MDC in writing, via fax
or any equivalent means within 48 hours of any defects found after
acceptance of the products. MDC's liability under this clause shall not
extend:
1. to defects arising from the misuse of the items after
acceptance.
2. to defects in materials, assemblies or other supplies issued
by SHI for incorporation therein, provided always that MDC
shall have properly exercised its duties as custodian of such
issues and shall have incorporated them in accordance with the
requirements of the contract.
B. MDC's warranty shall not extend to compensation for damage resulting
from the use of articles covered by the contract after acceptance.
Consequently, SHI and/or SHI customers shall have no claim against MDC
for damage suffered by it.
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C. Where defects in items are remedied by repair under this warranty, the
repaired item shall be warranted for the remainder of the unexpired
warranty. Where defective items are replace by new ones the full
guarantee period stipulated in the Contract shall apply to such
replacement items form the date of their acceptance.
D. EXCEPT AS PROVIDED IN THIS ARTICLE, MDC MAKES NO WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Article 31 - Relationship of Parties
This Contract is not intended by the parties to constitute or create a joint
venture, partnership or formal business organization of any kind. The rights and
obligations of the parties shall be only those expressly set forth herein. The
relationship established by this Contract is exclusively that of seller and
buyer.
Article 32 - Manned Space Flight Item
MDC shall include the following statement in all subcontracts and purchase
orders placed by it in support of this Contract, without exception as to amount
or subcontractual level:
For use in manned space flight; materials, manufacturing, and
workmanship of highest quality standards are essential to astronaut
safety.
If you are able to supply the desired item with a higher quality than
that of the items specified or proposed, you are requested to bring
this fact to the immediate attention of the purchaser.
Article 33 - Order of Precedence
In the event of any conflict between Contract and the Statement of Work, the
contract shall take precedence.
Article 34 - Technical Data
All technical data, of whatever type or kind, produced and deliverable under
this Contract shall be the "joint" property of SHI and MDC, and SHI and MDC
shall each have a "royalty-free" right or license to use such data for any
purpose including performance under this Contract.
Article 35 - Patent Rights
All discovery or inventions of whatever type or kind first made or reduced to
practice in connection with the performance of this Contract are the "joint"
property of SHI and MDC, and SHI and MDC (and any of the parties' present or
future employees, agents, consultants or subcontractors pursuant to contractual
rights with one of the parties - hereinafter "Agent") shall each have a
royalty-free right or license therein.
Article 36 - Use of Company Logo
Use of The Boeing Company logo by SHI in marketing presentations and printed or
electronic publications shall be coordinated with and approved by MDC prior to
dissemination.
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IN WITNESS WHEREOF, the parties have caused their duly authorized representative
to execute this Contract in duplicate.
XXXXXXXXX XXXXXXX CORPORATION, SPACEHAB, INC.
A WHOLLY-OWNED SUBSIDIARY OF
THE BOEING COMPANY
By: _____________________________ By:
Name: X.X. XxXxxxx Name: Xxxxx Xxxxxxxx
Title: Senior Contracts Administrator Title: Contracts Administrator
Date: _____________________________ Date:
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