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EXHIBIT 10.5.1
AMENDMENT NO. 1 TO
ORBCOMM SYSTEM PROCUREMENT AGREEMENT
This Amendment No. 1 ("Amendment No. 1") to ORBCOMM System Procurement
Agreement is entered into this 9th day of December, 1996 between ORBCOMM
Global, L.P. ("ORBCOMM Global") and Orbital Sciences Corporation ("Orbital")
WITNESSETH
WHEREAS, the parties previously entered into ORBCOMM System
Procurement Agreement dated as of September 12, 1995 (the "Procurement
Agreement"); and
WHEREAS, the parties wish to amend certain terms and conditions
regarding the launch of two satellites on a Taurus Launch Vehicle;
NOW THEREFORE, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Procurement Agreement.
ARTICLE 2 - AMENDMENTS
Section 2.1. The last sentence of Section 2.9 of the Procurement
Agreement is deleted in its entirety and replaced with the following:
In the event of the availability of the two Satellites and the Taurus
Launch Vehicle for the upcoming GeoSat Follow-On ("GFO") mission, in
accordance with the Statement of Work therefor, Orbital shall launch
the two Satellites for a price of Eight Million Five Hundred Thousand
Dollars ($8,500,000), the first milestone installment of which shall
be due and payable immediately.
Section 2.2. Section 3.1 of the Procurement Agreement is amended by
adding a new subsection (c) immediately after subsection (b) that reads as
follows:
(c) Launch of two Satellites on the Taurus GFO Mission $8,500,000
Section 2.3. Section 5.1 of the Procurement Agreement is amended by
adding a new subsection (e) immediately after subsection (d) that reads as
follows:
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(e) Delivery of the two high inclination orbit Satellites
shall occur on intentional ignition of the Taurus Launch Vehicle as
follows:
Deliverable Date
----------- ----
Satellites 25-26 (nominally FM 3-4) May 1997
Section 2.4. Section 7.1 of the Procurement Agreement is amended by
adding a new subsection (d) immediately after subsection (c) that reads as
follows:
(d) with respect to the two Satellites to be launched as a
secondary payload on the Taurus Launch Vehicle for the GFO mission on
intentional ignition of the Taurus Launch Vehicle. ORBCOMM shall not
take title or have risk of loss with respect to such Taurus Launch
Vehicle.
Section 2.5. Article 8 of the Procurement Agreement is amended by
adding a new Section 8.3 immediately after Section 8.2 that reads as follows:
Section 8.3 - Change Orders for Satellites to be Launched on
Taurus Launch Vehicle. Notwithstanding the provisions of this Article
8, without the prior written consent of Orbital, ORBCOMM Global shall
not be entitled to issue a change order that would have the effect of
delaying the delivery date of two Satellites to be launched as a
secondary payload on the Taurus Launch Vehicle for the GFO mission.
Section 2.6. Article 10 of the Procurement Agreement shall be
deleted in its entirety and replaced with the following:
ARTICLE 10 - SECONDARY PAYLOAD PROVISIONS
Section 10.1 - Launch of Two Satellites on Taurus Launch
Vehicle. The two Satellites to be launched on the Taurus Launch
Vehicle for the GFO mission are considered to be secondary payloads.
The launch date and primary orbit characteristics of the mission are
established and maintained by Ball Aerospace & Technologies
Corporation, the primary payload customer ("Ball Aerospace"). Orbital
shall inform ORBCOMM of any primary payload-caused delays to the
launch date; provided that Orbital shall not be liable to ORBCOMM for
any damages due to primary payload-caused launch delays; and provided
further, that (a) in the event the orbit characteristics of the
mission are changed such that the orbit desired by the primary payload
customer is in ORBCOMM's opinion incompatible with the technical or
other requirements of the ORBCOMM System, (b) if the primary payload
size or weight makes it technically impossible or
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inappropriate for the Taurus Launch Vehicle to have a secondary
payload, (c) Ball Aerospace desires and Orbital agrees to accelerate
the launch date for the GFO mission to before May 15, 1997 and Orbital
and ORBCOMM Global can not deliver the Satellites to meet such earlier
launch date or (d) the Satellites are not ready to be launched (other
than solely as a result of the failure of ORBCOMM Global to perform
its obligations under this Agreement) when the Taurus Launch Vehicle
is launched, ORBCOMM Global shall be entitled, without liability to
Orbital, to cancel its exercise of the option to launch two Satellites
on the Taurus Launch Vehicle, whereupon ORBCOMM Global shall be
entitled to a prompt refund of any monies previously paid to Orbital
in connection with exercise of the option to launch such two
Satellites on the Taurus Launch Vehicle.
Section 2.7. Article 12 of the Procurement Agreement shall be amended
by adding a new Section 12.3 immediately after Section 12.2 that reads as
follows:
Section 12.3 - Termination of the Primary Customer Contract.
In the event Ball Aerospace terminates the Taurus Launch Vehicle for
the GFO mission, Orbital shall promptly refund to ORBCOMM Global any
monies previously paid to Orbital in connection with exercise of the
option to launch two Satellites on the Taurus Launch Vehicle.
Section 2.8. Article 15 of the Procurement Agreement shall be amended
by adding a new Sections 15.6 and 15.7 immediately after Section 15.5 that
reads as follows:
Section 15.6 - Launch of Two High Inclination Orbit
Satellites. ORBCOMM Global shall be invited to attend all launch
readiness reviews prior to the Taurus launch for the GFO mission. As
the two high inclination orbit satellites are secondary payloads for
the Taurus Launch Vehicle for the GFO mission, if any delays to the
GFO launch are caused by the Satellites and the cause for such delay
is not attributable to Orbital or within Orbital's control or due to
its fault or negligence, ORBCOMM Global shall be responsible for all
delay costs actually incurred by Orbital, including delay costs to
Ball Aerospace, if any; provided however that in no event shall
ORBCOMM Global be obligated to pay any delay costs or penalties in
excess of $1,000,000 in the aggregate.
Section 15.7 - Miscellaneous Provisions Relating to Taurus
Launch Vehicle GFO Mission. The parties acknowledge that the GFO
Launch Services Agreement between Orbital and Ball Aerospace requires
that, in the event Orbital flies a secondary payload on the GFO
mission that the contract for such secondary payload contain certain
terms and conditions. Accordingly, the Procurement Agreement is hereby
modified to include the provisions set forth in Exhibit H but only to
the extent specified therein.
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Section 2.9. Exhibit A, Part 2 of the Procurement Agreement shall be
amended to add Section 4 immediately after Section 3 in the form of Exhibit A,
Part 2, Section 4 attached hereto.
Section 2.10. Exhibit E to the Procurement Agreement shall be deleted
in its entirety and replaced with Exhibit E attached to this Amendment No. 1.
SECTION 3 - MISCELLANEOUS
Section 3.1. Except as otherwise provided in Exhibit H, this Amendment
No. 1 shall be construed in accordance with and governed by the laws of the
Commonwealth of Virginia, without giving effect to the provisions, policies or
principles thereof related to choice or conflict of laws.
Section 3.2. No changes to the Procurement Agreement are authorized
hereby except as otherwise specified in this Amendment No. 1.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the day and year first above written.
ORBCOMM GLOBAL, L.P.
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
ORBITAL SCIENCES CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Director, Contracts
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EXHIBIT A, PART 2, SECTION 4
Statement of Work and Specifications
For
ORBCOMM FM-3 and FM-4
Launch Services
December 11, 1996
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1. INTRODUCTION AND OBJECTIVES
This Statement of Work (SOW) describes the tasks to be performed by OSC Launch
Systems Group (LSG) necessary to provide launch services for two of ORBCOMM
Global's Low-Earth orbit satellites (known as FM-3 and FM-4) as secondary
payloads on the Taurus Commercial Launch Vehicle (LV), specifically the Geosat
Follow-On (GFO) mission. The intent of this contract is for the OSC/LSG to
perform all tasks necessary to place the OSC/ASG furnished payloads into the
required orbit as described in section 3.1.1 Mission Requirements.
All "TBD" items that are set forth in this SOW shall be provided by OSC/LSG
within five business days of the execution of this Amendment No. 1 and shall be
subject to ORBCOMM Global's reasonable review and approval.
1.2 LAUNCH VEHICLE SERVICES
OSC/LSG shall provide all the necessary management, personnel, services,
hardware, equipment, documentation and facilities necessary to support mission
analysis, processing, and integration; to test interfaces with the ORBCOMM
satellite at the Vandenberg launch site and otherwise as mutually agreed; to
successfully launch the ORBCOMM satellites into the specified orbit within the
specified environmental constraints, to separate the ORBCOMM satellite from the
LV, and to support post-flight analysis.
OSC/LSG shall provide the Commercial Taurus vehicle to supply the ORBCOMM
launch services. The payload interface characteristics, payload environmental
conditions, related services and other technical requirements are described in
TD-2589, Taurus/ORBCOMM Interface Control Document (ICD), the terms of which
shall be subject to ORBCOMM Global's review and reasonable approval.
2. GENERAL BACKGROUND
The ORBCOMM System is a constellation of at least 26 gravity gradient
stabilized satellites designed to relay VHF radio packets between ground users.
This SOW covers the Taurus launch of two of these satellites as secondary
payloads on the GFO mission.
2.1 APPLICABLE DOCUMENTS
The following documents will be provided to ORBCOMM Global for reference
purposes only.
2.1.1. REFERENCE DOCUMENTS
PRD Mission Annex (to be delivered within approximately two months of
execution of Amendment No. 1).
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OR Mission Annex (to be delivered within approximately two months of
execution of Amendment No. 1).
Launch Checklist (to be delivered by April 30, 1997).
Mission Constraints Document (to be delivered by April 30, 1997).
2.1.2. COMPLIANCE DOCUMENTS
Both parties shall comply with the following documents, as they may be
modified from time to time.
DOCUMENT NUMBER TITLE
--------------- -----
EWR 127-1 Eastern and Western Range Safety
Requirements, March 1995
SSD-TD-xxxx Payload Safety Design Criteria
TD-2859 Taurus/ORBCOMM Interface Control
Document
3. CONTRACTOR TASKS
OSC/LSG shall provide full launch services, including launch vehicle, interface
engineering and coordination, operations planning and launch site processing.
3.1 TAURUS LAUNCH SERVICES
3.1.1. MISSION REQUIREMENTS
The Taurus shall place the ORBCOMM satellites in the orbit per the
requirements of Table 3-1.
------------------------------- ---------------------------------------
PARAMETER REQUIREMENT *
------------------------------- ---------------------------------------
Payload Weight (lbs) 200
------------------------------- ---------------------------------------
Inclination (deg) 108.044
------------------------------- ---------------------------------------
Perigee (km) 778.7
------------------------------- ---------------------------------------
Apogee (km) 790.1
------------------------------- ---------------------------------------
Table 3-1. Mission Orbit Requirements
*Tolerances shall be as indicated in the ICD.
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3.1.2. LAUNCH VEHICLE
3.1.2.1. TAURUS PROGRAM MANAGEMENT
OSC/LSG shall provide a single point of contact, the Taurus Program
Manager, for all program-related matters. The Program Manager has full
authority and responsibility for all program management, vehicle
production, payload coordination and launch operations required to
successfully conduct the program.
3.1.2.2. MISSION INTEGRATION SERVICES
3.1.2.2.1. MANAGEMENT
OSC/LSG shall provide a single point of contact, the Mission
Manager, for all mission-related matters. The Mission Manager has
full authority delegated to him/her within budget and schedule
limits, and has full responsibility for scheduling and procuring
the resources required to successfully conduct the mission.
3.1.2.2.2. SCHEDULE
OSC/LSG shall perform procurement, analysis, integration and test
activities consistent with the mission schedule.
3.1.2.2.3. DOCUMENTATION
OSC/LSG shall prepare, edit, coordinate, and maintain the
documents listed in Table 3-2 for the Taurus mission.
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ITEM DOCUMENT DELIVERY DATES
--------------------------------------------------------------------------
1 Preliminary Mission Analysis (PMA) TBD
--------------------------------------------------------------------------
2 PRD Mission Annex TBD
--------------------------------------------------------------------------
3 Operations Requirements (OR) TBD
--------------------------------------------------------------------------
4 Interface Control Document (ICD) TBD
--------------------------------------------------------------------------
5 Safety Data Package (SDP) TBD
--------------------------------------------------------------------------
6 Final Mission Analysis (FMA) TBD
--------------------------------------------------------------------------
7 Launch Checklists TBD
--------------------------------------------------------------------------
8 Mission Constraints Document (MCD) TBD
--------------------------------------------------------------------------
9 Final Mission Report (FMR) TBD
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Table 3-2. Standard Taurus Mission Related Documents
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3.1.2.2.4. ANALYSIS
OSC shall perform the following analysis for the Taurus mission:
3.1.2.2.4.1. PRE-LAUNCH ANALYSIS
1. Preliminary Mission Analysis supporting range
resource requirements and mission compatibility.
2. Final Trajectory design analysis supporting the
Mission Data Load, range safety
tapes, and FMA.
3. Guidance analysis to determine dispersions and
injection accuracies.
4. Stability and control analysis to characterize
autopilot stability and aerodynamic parameters.
5. Launch Vehicle mass properties analysis and mass data
maintenance.
6. Power systems analysis to support power budget and
verify energy and load margins.
7. Link analysis to determine telemetry and flight
termination system link margins.
8. Payload environmental analyses to define pre-launch
and launch environments.
3.1.2.2.4.2 POST-LAUNCH ANALYSIS
1. Quick-look assessment within 48 hours after launch to
include preliminary trajectory performance data,
orbital accuracy estimates, system performance
evaluations, and mission success assessments.
2. A final post-launch evaluation within eight weeks of
launch to include actual trajectory, event times,
environments, reduced telemetry data, and comparison
studies with predicted performance.
3.1.2.2.5. WORKING GROUPS
OSC/LSG shall maintain responsibility for launch vehicle
mission-specific working groups. OSC/LSG shall organize,
convene, and schedule the meetings, provide chairpersons or
co-chairpersons, develop and coordinate meeting agendas, track
action items, and gather and distribute all pre- and
post-meeting materials such as view graphs, minutes and action
items.
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The mission-specific working groups shall be responsible for:
1. Ensuring compliance with range safety and other range
related requirements.
2. Identifying and obtaining range tracking, telemetry and
command control services.
3. Planning and implementing all ground and flight
operations.
4. Developing, coordinating, and releasing all safety
documentation, and launch checklists.
5. Developing, coordinating and presenting all required range
safety and flight readiness reviews.
6. All mission-specific analysis.
7. Coordinating interface and support requirements for the
payload and mission.
8. Mission-specific flight operations planning.
9. Developing, coordinating, and releasing mission specific
documentation: PRD Mission Annex, the OR Mission Annex
and the Interface Control Document.
3.1.3 PAYLOAD DESIGN PARAMETERS
The Taurus program shall provide payload interface services and
accommodations consistent with the specifications included in TD-2589,
Taurus/ORBCOMM ICD. This ICD defines Taurus/ORBCOMM mechanical and
electrical interfaces, payload environments, payload design
constraints, and GSE interfaces.
3.1.4 FACILITIES
3.1.4.1. GROUND SUPPORT EQUIPMENT
OSC/LSG shall provide the following standard ground support equipment:
1. Equipment for transportation, delivery, loading and unloading of
the Taurus vehicle.
2. Equipment for nominal integration and test of a Taurus vehicle.
3. Equipment to maintain standard payload environmental control
requirements.
3.1.4.2. MISSILE ASSEMBLY BUILDING (MAB)
OSC/LSG shall provide the MAB at the Xxxxxxxxxx Air Force Base (VAFB)
to support all standard launch vehicle processing and ORBCOMM
integration services. OSC/LSG shall keep all MAB spaces in a visibly
clean condition.
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3.1.4.2.1. PAYLOAD INTEGRATION AREA
OSC/LSG shall provide TBD ft2 of MAB floor space for payload
checkout purposes. The integration area shall be made available to
the payload no earlier than TBD days prior to launch. The payload
integration area shall be equipped with or have access to the
following services:
1. 115 Vac/220 Vac, 3 phase power.
2. 75 ft.-candles of illumination.
3. Full lightning protection.
4. Grounding.
3.1.4.3. LAUNCH COMPLEX
The Launch Complex will include the launch stand, umbilicals and pad.
Launch control will be provided via the Launch Equipment Van (LEV) and
Launch Support Van (LSV) operated by OSC/LSG personnel. OSC/LSG shall
assist in the installation of ASG's payload checkout equipment in the
LEV.
3.1.5. LAUNCH OPERATIONS
3.1.5.1. LAUNCH CONTROL ORGANIZATION AND DECISION PROCESS.
OSC/LSG shall provide for a structured launch control organization.
OSC/LSG shall also provide for a formal launch decision process to
obtain coordinated status during launch operations. The process shall
be structured such that all critical events and statuses are properly
coordinated through the appropriate personnel. Note that as a secondary
payload, OSC/ASG will report to the OSC/LSG Mission Director who, in
turn, reports to the GFO Mission Director.
3.1.5.2. LAUNCH CONTROL ROOM
OSC/LSG shall provide for a launch control room during launch
operations and mission dress rehearsals. The launch control room shall
provide for two payload stations.
3.1.6. PAYLOAD SERVICES DURING LAUNCH OPERATIONS
3.1.6.1. PAYLOAD DELIVERY
OSC/LSG shall support payload delivery to the MAB no earlier than TBD
days prior to launch and no later than TBD days prior to launch.
OSC/LSG services and equipment shall be made available on a
non-interference basis to the payload to support delivery and
off-loading operations.
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3.1.6.2. PAYLOAD PROCESSING AND CHECKOUT
OSC/LSG shall maintain MAB and launch site management and test
scheduling responsibilities throughout the entire launch operations
cycle. All work performed in the MAB, GFO Payload Processing Facility,
and launch site, shall be scheduled with the OSC/LSG Site Manager.
OSC/LSG shall support and schedule any payload Range related or
hazardous testing or operations conducted within these areas.
OSC/LSG shall support the implementation of any Taurus/ORBCOMM
integrated procedures developed by the mission working groups.
3.1.6.3. TELEMETRY AND TRACKING
OSC/LSG shall provide for Taurus telemetry and tracking services during
powered flight through Range Loss of Signal. Telemetry to be provided
with respect to the ORBCOMM satellites shall be as set forth in the
ICD. Data shall be passed to the payload mission control console as
determined by the mission working groups. Only the telemetry and
tracking services required by Range Safety shall be deemed mandatory
during Taurus launch operations.
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EXHIBIT E
PAYMENT SCHEDULE FOR TAURUS LAUNCH
Milestone Payment
--------- -------
Amendment of Procurement Agreement
to Incorporate the Exercise of Taurus
Launch Option $500,000
Launch of Two Satellites Using
the Taurus Launch Vehicle $450,000
Successful Launch $300,000
Launch Plus 25 Months $750,000
Launch Plus 37 Months $500,000
Launch Plus 49 Months $500,000
Launch Plus 61 Months $1,000,000
Launch Plus 67 Months $2,000,000
Launch Plus 72 Months $2,500,000
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EXHIBIT H
GFO MISSION SECONDARY PAYLOAD PROVISIONS
1.0 INTER-PARTY WAIVER OF LIABILITY. The parties stipulate and agree that the
"Agreement for Waiver of Claims and Assumption of Responsibility" attached
to this Exhibit H as Attachment H-1 is hereby incorporated into and made a
part of this Agreement.
2.0 THIRD-PARTY LIABILITY AND INDEMNIFICATION
2.1 PARTIES LIABLE FOR NEGLIGENCE. Unless specified otherwise herein,
and only to the extent of its sole or partial primary fault or
negligence, each party shall be wholly or concurrently liable for
damages for bodily injury, as defined in Attachment H-1 of this
Agreement, and property damage, as well as for any other damage,
sustained by a third party which is caused by the sole or concurrent
primary fault or negligence of such party, or by its property,
resulting from any and all activities or circumstances in connection
with this Agreement.
2.2 ORBCOMM GLOBAL LIABLE FOR PAYLOAD. ORBCOMM Global shall be solely or
partially liable for damages for bodily injury, as defined in
Attachment H-1 of this Agreement, and property damage, as well as
for any other damage, sustained by a third party, only to the extent
such bodily injury and property damage is wholly or partially caused
by any and all parts of the Satellites provided by ORBCOMM Global
and not by the Launch Vehicle or by Orbital's activities or services
in connection with this Agreement.
2.3 ORBITAL LIABLE FOR LAUNCH VEHICLE AND FOR LAUNCH SERVICES. Orbital
shall be solely or partially liable for damages for bodily injury,
as defined in Attachment H-1 of this Agreement, and property damage,
as well as for any other damage, sustained by a third party, only to
the extent such bodily injury and property damage is wholly or
partially caused by any and all parts of the Launch Vehicle, parts
of the Satellites provided by Orbital or which arises out of or in
connection with Launch Services under this Agreement and not by the
parts of the Satellites provided by ORBCOMM Global or by ORBCOMM
Global's activities or services under this Agreement.
2.4 INDEMNIFICATION. In addition to the above provisions, and absent any
established kind or degree of fault or negligence of ORBCOMM Global,
Orbital shall indemnify and hold ORBCOMM Global harmless from and
all loss, damage, liability or expense resulting from property
damage and bodily injury, as defined in Attachment H-1 of this
Agreement, caused to third parties, which damage or injury arises
out of or in connection with the Launch Services provided or parts
of the Satellites provided by Orbital under this Agreement,
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to the extent that said damage or injury is not covered by insurance
or by indemnification provided by the U.S. Government.
3.0 GOVERNING LAW. The provisions of this Agreement relating to the rights and
relationships among Ball Aerospace, Orbital and ORBCOMM Global relating to
the launch by Orbital of two Satellites on the Taurus Launch Vehicle for
the GFO Mission shall be governed by and construed in accordance with the
laws of the State of California, United States of America, exclusive of
that jurisdiction's choice of law rules; provided that any right or
relationship between Orbital and ORBCOMM Global not involving Ball
Aerospace shall be governed by Section 16.5 of this Agreement.
4.0 ARBITRATION. Notwithstanding Section 16.4 of this Agreement, any
controversy or claim out of, or relating to, the rights and relationship
among Ball Aerospace, Orbital and ORBCOMM Global, relating to the launch
by Orbital of two Satellites on the Taurus Launch Vehicle for the GFO
Mission, the following provisions shall apply:
4.1 NOTICE OF ARBITRATION. If any controversy or claim out of, or
relating to, this Agreement, or the breach thereof, fails to be
resolved through negotiation within a period of sixty (60) days,
then upon written notice by any party, such controversy or claim
shall be settled by arbitration in accordance with the terms and
conditions of this Section.
4.2 ADMINISTRATION AND RULES. Arbitration proceedings in connection with
this Agreement shall be administered by the American Arbitration
Association in accordance with its then in effect Commercial
Arbitration Rules, together with any relevant supplemental rules
including, but not limited to, its Supplementary Procedures for
Large, Complex Disputes and its Supplementary Procedures for
International Commercial Arbitration, as modified by the terms and
conditions of this Agreement.
4.3 LANGUAGE. Arbitration proceedings in connection with this Agreement
shall be conducted in the English language, provided that at the
request and expense of any party, documents and testimony shall be
translated into any language specified by the requesting party.
4.4 SELECTION OF ARBITRATORS. Arbitration proceedings in connection with
this Agreement shall be conducted before a panel of three (3)
arbitrators. Within fifteen (15) days after the commencement of
arbitration, each party shall select one person to serve as an
arbitrator on the panel, and within ten (10) days of their
selection, the two arbitrators shall select a neutral third party
arbitrator from a list of qualified persons provided by the American
Arbitration Association. If the two arbitrators selected by the
respective parties are unable or fail to agree upon the third
arbitrator in the allotted time, then the third arbitrator shall be
selected by the American Arbitration Association.
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4.5 LOCALE OF MEETINGS. All meetings for arbitration proceedings in
connection with this Agreement shall be held in Salt Lake City, in
the State of Utah, in the United States of America, or at such other
place as may be selected by mutual agreement of all parties.
4.6 INJUNCTIVE RELIEF. Any party to this Agreement may make an
application to the arbitrators seeking injunctive relief until such
time as the arbitration award is rendered or the controversy or
claim is otherwise resolved.
4.7 DISCOVERY. The arbitrators shall have the discretion to order a
pre-hearing exchange of information by the parties, including
without limitation, production of requested documents, exchange of
summaries of testimony of proposed witnesses, and examination by
deposition of parties.
4.8 CONSOLIDATION. Arbitration proceedings in connection with this
Agreement shall be consolidated with arbitration proceedings pending
between a party and any subcontractor if the arbitration proceedings
arise out of the same transaction or relate to the same subject
matter and if such party and subcontractor are bound by an
arbitration agreement which is substantially similar to that
contained in this Agreement. If proceedings are consolidated, all
references to party in this Section shall also mean subcontractor.
4.9 AWARD AND JUDGMENT. The arbitrators shall have no authority to award
punitive damages or any other damages not measured by the prevailing
party's actual damages, and may not, in any event, make any ruling,
finding or award that does not conform to the terms and conditions
of this Agreement. Subject to the foregoing, the parties agree that
the judgment of the arbitrators shall be final and binding upon the
parties, and that judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
4.10 CONFIDENTIALITY. Except as otherwise required by law, rule or
regulation, no party or arbitrator may disclose the existence,
content, or results of any arbitration proceedings in connection
with this Agreement without prior written consent of all parties to
the arbitration proceeding.
4.11 FEES AND EXPENSES. All fees and expenses of any arbitration
proceedings in connection with this Agreement shall be borne by the
parties equally. However, each party shall bear the expense of its
own counsel, experts, witnesses, and preparation and presentation of
evidence.
Any controversy or claim arising out of, or between Orbital and ORBCOMM
Global not involving Ball Aerospace shall be governed by Section 16.4 of
this Agreement.
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ATTACHMENT H-1
AGREEMENT FOR
WAIVER OF CLAIMS AND
ASSUMPTION OF RESPONSIBILITY
THIS AGREEMENT is entered into this ___ day of ______________, 19__, by and
among (Licensee) (the "Licensee"), (Customer) (the "Customer") and the
Department of Transportation, on behalf of the United States (collectively, the
"Parties"), to implement the provisions of Sections 16(a) (1) (C) and (D) of
the Commercial Space Launch Act, as amended, 49 U.S.C. # 00000.xx seq.(the
"CSLA").
In consideration of the mutual releases and promises contained herein, the
Parties hereby agree as follows:
1. Definitions
"Bodily Injury" means bodily injury, sickness, disease, disability,
shock, mental anguish or mental injury sustained by any person,
including death, and damages for care and loss of services resulting
therefrom.
"Contractors" and "Subcontractors" means contractors and
subcontractors, respectively, at any tier, including suppliers of any
kind, of any Party, that are involved in Licensed Launch Activities.
"Customer" means the Customer and any person or entity to whom the
Customer has sold, leased or assigned the Payload to be launched by
the Licensee, or any part thereof.
"License" means License No. ______ issued on ___________, 19__, by the
Office of Commercial Space Transportation, Department of
Transportation, to the Licensee, including any license orders issued
in connection therewith.
"Licensed Launch Activities" means the activities carried out under
the License.
"Licensee" means the Licensee and any permitted transferee.
"Property Damage" means injury or damage to or destruction of,
property, real or personal, including loss of use thereof.
"United States" means the United States and its agencies involved in
Licensed Launch Activities.
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Except as otherwise defined herein, terms used herein and defined in the CSLA
shall have the meanings therein contained.
2. Waiver and Release of Claims
a. Licensee hereby waives and releases claims it may have against
Customer and the United States, and against their respective
Contractors and Subcontractors, for any Property Damage it
sustains and for any Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Launch Activities,
regardless of fault.
b. Customer hereby waives and releases claims it may have against
Licensee and the United States, and against their respective
Contractors and Subcontractors, for any Property Damage it
sustains and for any Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Launch Activities,
regardless of fault.
c. The United States hereby waives and releases claims it may have
against Licensee and Customer, and against their respective
Contractors and Subcontractors, for any Property Damage it
sustains, to the extent that claims it would otherwise have for
such damage exceed the amount of insurance or demonstration of
financial responsibility required under Section 16(a) (1) (B) of
the CSLA, and for any Bodily Injury or Property Damage sustained
by its own employees, resulting from Licensed Launch Activities,
regardless of fault.
3. Assumption of Responsibility
a. Licensee and Customer shall each be responsible for any Property
Damage it sustains or for any Bodily Injury or Property Damage, or
for any claims whatsoever for such against any other Party to this
Agreement or to an extension of this Agreement, sustained by its
own employees, resulting from Licensed Launch Activities,
regardless of fault.
b. The United States shall be responsible for any Property Damage it
sustains, to the extent that claims it would otherwise have for
such damage exceed the amount of insurance or demonstration of
financial responsibility required under Section 16(a) (1) (B) of
the CSLA, or for any Bodily Injury or Property Damage, or for any
claims whatsoever for such against any other Party to this
Agreement or to any extension of this Agreement, sustained by its
own employees, resulting from Licensed Launch Activities,
regardless of fault.
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4. Extension of Assumption and Waiver
a. Licensee shall extend the waiver and release of claims and the
requirement of the assumption of responsibility as set forth in
paragraphs 2(a) and 3(a), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims
they may have against Customer and the United States, and against
their respective Contractors and Subcontractors, and to agree to
be responsible, for any Property Damage they sustain and for any
Bodily Injury or Property Damage, or for any claims whatsoever for
such against any other Party to this Agreement or to an extension
of this Agreement, sustained by their own employees, resulting
from Licensed Launch Activities, regardless of fault.
b. Customer shall extend the waiver and release of claims and the
requirement of the assumption of responsibility as set forth in
Paragraphs 2(b) and 3(a), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims
they may have against Licensee and the United States, and against
their respective Contractors and Subcontractors, and to agree to
be responsible, for any Property Damage they sustain and for any
Bodily Injury or Property Damage, or for any claims whatsoever for
such against any other Party to this Agreement or to an extension
of this Agreement, sustained by their own employees, resulting
from Licensed Launch Activities, regardless of fault.
c. The United States shall extend the requirement of the waiver and
release of claims and the assumption of responsibility as set
forth in Paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Licensee and Customer,
and against their respective Contractors and Subcontractors, and
to agree to be responsible, for any Property Damage they sustain
and for any Bodily Injury or Property Damage, or for any claims
whatsoever for such against any other Party to this Agreement or
to an extension of this Agreement, sustained by their own
employees, resulting from Licensed Launch Activities, regardless
of fault.
5. Indemnification
a. Licensee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, and the United States and its agencies,
servants, agents, employees and assignees, or any of them, from
and against any liability, loss or damage arising out of claims
Licensee's Contractors and Subcontractors may have for Property
Damage sustained by them and for Bodily Injury or Property Damage,
or for any claims whatsoever for such against any other Party to
this
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Agreement or to an extension of this Agreement, sustained by their
employees, resulting from Licensed Launch Activities.
b. Customer shall hold harmless and indemnify Licensee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, and the United States and its agencies,
servants, agents, employees and assignees, or any of them, from
and against any liability, loss or damage arising out of claims
Customer's Contractors and Subcontractors may have for Property
Damage sustained by them and for Bodily Injury or Property Damage,
or for any claims whatsoever for such against any other Party to
this Agreement or to an extension of this Agreement, sustained by
their employees, resulting from Licensed Launch Activities.
c. To the extent provided in advance in appropriations acts or to the
extent there is enacted additional legislative authority to
provide for the payment of claims, the United States shall hold
harmless and indemnify Licensee and Customer and their respective
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, from and against any liability, loss or
damage arising out of claims the United State's Contractors and
Subcontractors may have for Property Damage sustained by them and
for Bodily Injury or Property Damage, or for any claims whatsoever
for such against any other party to this Agreement or to an
extension of this Agreement, sustained by their employees,
resulting from Licensed Launch Activities.
6. CSLA Section 15(c) Assurances
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against any liability, loss or damage arising out of claims
for Bodily Injury or Property Damage, resulting from Licensed Launch
Activities, regardless of fault, except to the extent that: (i) as
provided in Section 7(b) hereof, claims result from willful misconduct
of the United States or its agents; (ii) claims for Property Damage
sustained by the United States exceed the amount of insurance or
demonstration of financial responsibility required under Section 16(a)
(1) (B) of the CSLA; or (iii) claims by a third party for Bodily
Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility under Section 16(a) (1) (A),
and do not exceed $1,500,000,000 (as adjusted for inflation) above
such amount, and are payable pursuant to the express provisions of
Section 16(b) of the CSLA.
7. Miscellaneous
a. Nothing contained herein shall be construed as a waiver or release
by Licensee, Customer or the United States of any claim by any
employee of
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Licensee, Customer or the United States, respectively, or any
member of the Armed Forces of the United States, for Bodily Injury
or Property Damage, resulting from Licensed Launch Activities.
b. Notwithstanding any provision of this Agreement to the contrary,
any waiver, release, assumption of responsibility or agreement to
indemnify herein shall not apply to claims for Bodily Injury or
Property Damage resulting from willful misconduct of any of the
Parties, the Contractors and Subcontractors of any of the Parties
and, in the case of Licensee and Customer and the respective
Contractors and Subcontractors of each of the parties, the
directors, officers, agents and employees of any of the foregoing,
and, in the case of the United States, its agents.
