Lockheed ▇▇▇▇▇▇ Commercial Launch Series Proprietary Data
CONTRACT FOR LAUNCH SERVICES
This Contract is made and entered into by and between Lockheed ▇▇▇▇▇▇ Commercial
Launch Services, Inc., a Delaware corporation, having its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Contractor") and EchoStar Space Corporation having its principal place of
business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ("Customer").
ARTICLE 1
DEFINITIONS
Unless the context shall otherwise require, capitalized terms used herein shall
have the following meanings:
AFFILIATE means the directors, officers, agents and employees of a Party.
This definition is for identification purposes only and shall not be interpreted
as creating any privity of contract between Affiliates of one Party and the
other Party or its Affiliates.
CSLA means the Commercial Space Launch Act, 49 U.S.C. Sections 70101 - 70119, as
amended.
CONSTRUCTIVE TOTAL FAILURE means that it can be determined from flight data or
other evidence, that the Launch Vehicle performed, at any time from Launch to
the separation of the Satellite, in a manner that: (i) caused the Satellite's
operational capacity (functional lifetime) or nominal lifetime to be reduced by
fifty percent (50%) or more based on Customer's intended purposes for the
Satellite using its reasonable judgment; or (ii) caused the Satellite's attitude
or orbital conditions after Satellite Separation to be such that correction is
required to place the Satellite into nominal operating condition and this
correction results in a reduction of fifty percent (50%) or more of the
Satellite's nominal lifetime.
CONTRACT means this instrument and all exhibits attached hereto, as the same may
be amended from time to time in accordance with the terms hereof.
Exhibit A - Statement of Work
Exhibit B - Interface Control Document
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CONTRACT PRICE means the Launch Service Price and the applicable Reflight
Launch Fee or Refund Fee, if any, as set forth in Article 4 entitled "Contract
Price."
EFFECTIVE DATE shall have the meaning set forth in Article 32 entitled
"Effective Date."
EXCUSABLE DELAY shall have the meaning set forth in Paragraph 8.1 entitled
"Excusable Delays Defined."
FAILURE REVIEW BOARD shall have the meaning and the duties set forth in
Paragraph 19.5 entitled "Failure Review Board."
INTENTIONAL IGNITION means that point in time, during the launch countdown, when
initiation of the firing command for the gas generator igniters occurs and
firing of any of the gas generator igniters occurs.
INTERFACE CONTROL DOCUMENT or ICD means that document attached as Exhibit B to
this Contract.
LAUNCH means the Intentional Ignition followed by either (i) release of the
Launch Vehicle from the launcher hold down restraints for the purpose of lift
off; or (ii) total loss or destruction of the Satellite or Launch Vehicle.
LAUNCH DATE means the calendar date within the Launch Slot during which the
Launch is scheduled to occur, as established in accordance with Article 6
entitled "Launch Schedule" and as such Launch Date may be adjusted in accordance
with Article 7 entitled "Launch Schedule Adjustments."
LAUNCH OPPORTUNITY means an adequate time period during which Contractor, in its
reasonable judgment, may provide a Launch Service to the Customer , taking into
account all relevant conditions, including but not limited to, commitments to
other customers, maintenance of appropriate clearance times between flights,
hardware availability and requirements of the United States Government for range
support.
LAUNCH PERIOD means a period of ninety (90) days during which a Launch may be
scheduled to occur, and as such Launch Period may be adjusted in accordance
with Article 7 entitled "Launch Schedule Adjustments."
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LAUNCH SERVICE means those services to be provided by Contractor to Customer for
a single Launch as set forth in Exhibit A entitled "Statement of Work."
LAUNCH SERVICE PRICE means the price for any Launch Service as set forth under
the heading "Launch Service Price" in Paragraph 4.1 entitled "Contract Price"
and subject to adjustment as provided herein.
LAUNCH SLOT: means a thirty (30) day period within the Launch Period during
which the Launch is scheduled to occur, as established in accordance with
Article 6 entitled "Launch Schedule" and as may be adjusted in accordance with
Article 7 entitled "Launch Schedule Adjustments"
LAUNCH VEHICLE means the Atlas IIAS launch vehicle system including the Atlas
lower stage and Centaur upper stage connected by an interstage adapter, the
payload fairing and the payload adapter with separation system, ( but excluding
any Customer unique mission requirements).
LAUNCH VEHICLE MISSION FAILURE means the occurrence of a Total Failure or
Constructive Total Failure.
PARTIAL FAILURE means that it can be determined from flight data or other
evidence that the Launch Vehicle performed, at any time from Launch to the
separation of the Satellite, in a manner that: (i) caused the Satellite's
operational capacity (functional lifetime) or nominal lifetime to be reduced by
more than ten percent (10%) but less than fifty percent (50%), based on
Customer's intended purposes for the Satellite using its reasonable judgment; or
(ii) caused the Satellite's attitude or orbital conditions after Satellite
Separation to be such that correction is required to place the Satellite into
nominal operating condition and this correction results in a reduction of more
than ten percent (10%) but less than fifty percent (50%) of the Satellite's
nominal lifetime.
PARTY or PARTIES means Contractor, Customer or both.
REFLIGHT LAUNCH means the additional Launch Service(s) which may be provided to
Customer in accordance with Article 19 entitled "Reflight or Refund."
REFLIGHT LAUNCH FEE means the fee for Reflight Launch coverage set forth in
Article 19 entitled "Reflight or Refund."
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REFUND means the amount payable to the Customer pursuant to Paragraph 19.3
entitled "Terms Governing Refund" in the event the Launch Service is a Total
Failure, Constructive Total Failure, or Partial Failure.
REFUND FEE means the fee for Refund coverage set forth in Article 19 entitled
"Reflight or Refund."
RELATED THIRD PARTIES means (i) the Parties' Affiliates and customers; (ii) the
Parties' contractors, subcontractors and suppliers at any tier involved directly
or indirectly in the performance of this Contract, and their directors,
officers, agents and employees; and (iii) entities involved with payload
processing or other activities in the payload processing facilities, including
Contractor providing the payload processing facilities, other customers of the
payload processing facilities contractor, and all employees and contractors of
those contractors and customers. This definition is for identification purposes
only and shall not be interpreted as creating any privity of contract between
Affiliates of one Party and the other Party or its Affiliates.
REPLACEMENT LAUNCH means the additional Launch Service which may be provided to
the Customer in accordance with Article 20 entitled "Replacement Launch."
SATELLITE means the Customer-provided EchoStar III satellite and associated
property to be launched on the Launch Vehicle.
SATELLITE MISSION FAILURE means that it can be determined from flight data or
other evidence, that (i) the Satellite's operational capacity (functional
lifetime) or nominal lifetime have been reduced by fifty percent (50%) or more
based on Customer's intended purposes for the Satellite using its reasonable
judgment; or (ii) the Satellite's attitude or orbital conditions after
Satellite Separation require correction to place the Satellite into nominal
operating condition and this correction results in a reduction of fifty percent
(50%) or more of the Satellite's nominal lifetime.
SATELLITE SEPARATION means the physical separation of the Satellite from the
Launch Vehicle pursuant to the command activating the separation system that
releases the Satellite.
SUCCESS means a Launch Service which is not a Total Failure, Constructive Total
Failure or Partial Failure.
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TERMINATED IGNITION means the intentional or unintentional shutdown of the first
stage main engines after Intentional Ignition but before the release of the
Launch Vehicle from the launcher hold down restraints continuing until such time
as the pad is declared safe by the Range Safety Officer.
TERMINATION CHARGE means the charge calculated in accordance with Paragraph 21.6
entitled "Termination Charge."
THIRD PARTY means any person or entity other than Contractor, Customer, their
Affiliates and Related Third Parties and the United States Government and its
agencies, contractors or subcontractors involved in the Launch Services.
TOTAL FAILURE means that it can be determined from flight data or other evidence
that the Launch Vehicle, at any time from Launch to the separation of the
Satellite, performed in a manner that caused the Satellite to be totally lost,
completely destroyed or unable to separate from the Launch Vehicle.
ARTICLE 2
SERVICES TO BE PROVIDED
2.1 BASIC LAUNCH SERVICE Contractor shall furnish a Launch Service for one (1)
Launch of a the Customer-provided Satellite from Cape Canaveral Air Station
(CCAS), Florida, United States of America, in accordance with Exhibit A entitled
"Statement of Work."
2.2 REFLIGHT OR REFUND Subject to the provisions of Article 19 of this
Contract entitled "Reflight or Refund," Contractor shall provide a Reflight
Launch for a Customer-furnished Satellite or a Refund of the Launch Service
Price.
2.3 REPLACEMENT LAUNCH Subject to the provisions of Article 20 of this
Contract entitled "Replacement Launch", Contractor shall provide a Replacement
Launch for a Customer-furnished Satellite.
ARTICLE 3
RESERVED
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ARTICLE 4
CONTRACT PRICE
4.1 CONTRACT PRICE The Contract Price for the Launch Service shall be the
total of the Launch Service Price plus the Reflight Launch Fee or Refund Fee,
as the case may be, for the coverage described in Article 19 entitled
"Reflight Launch or Refund" should the Customer elect such coverage in
accordance with Article 19 of this Contract. Upon such election, the Contract
Price shall be adjusted accordingly.
Launch Service Reflight Launch Refund Contract
Price Fee* Fee* Price
----- ---- ---- ------
[CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL
MATERIAL MATERIAL MATERIAL MATERIAL
REDATED] REDATED] REDACTED] REDACTED]
*The Reflight Fee and Refund Fee are predicated upon the performance
of a Launch Service by no later than 31 December 1997 and are subject to
adjustment with reference to the-current rates in the event that the Launch
service occurs on or after 1 January 1998. In the event a Launch is
scheduled to occur on or after 1 January 1998, Contractor will invoice
Customer for the amount of any increase to the Reflight Launch Fee or
Refund Launch Fee, as the case may be, at least one hundred and eighty
(180) days before the Launch Date. If the Customer does not pay the
increased amount of the Reflight Launch Fee or Refund Launch Fee within one
hundred and twenty (120) days prior to the Launch Date, then the Customer
will be deemed to have waived and relinquished any rights to a Reflight
Launch or Refund under article 9 entitled "Reflight or Refund" and the
Customer will be entitled to a refund on any Reflight Launch Fee or Refund
Fee paid to Contractor.
4.3 TAXES The Contract Price includes all taxes, duties and other levies
imposed by the United States Government or any political subdivisions thereof
but excludes any taxes duties or other levies that may be imposed on any
Satellite, support equipment or technology by the United States Government or
any other government. Any taxes, duties or levies imposed on such Customer-
furnished items shall be the obligation of Customer and, should such become an
obligation of Contractor for any reason, Customer shall indemnify and hold
harmless Contractor from such obligation and shall reimburse Contractor within
thirty (30) days of Contractor's invoice for payment of such amounts.
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ARTICLE 5
PAYMENT
5.1 TIMING OF PAYMENTS Payment of the Contract Price shall be in U.S.
Dollars, subject to conditions set forth in Articles 7 and made in accordance
with the following schedule:
5.1.1 INITIAL PAYMENT: Customer will make an initial payment of
[CONFIDENTIAL MATERIAL REDACTED] for the Launch Service as set forth in
Article 2. This initial payment is due within thirty (30) days of the later
of the effective date of this Contract or the submission of Contractor's
invoice for the amount of the initial payment. The initial payment amount
due will be reduced to [CONFIDENTIAL MATERIAL REDACTED] payment made by the
Customer and received by the Contractor pursuant to a Letter of Intent
executed by the Contractor and Customer on March 27 1996.
5.1.2 PAYMENT NO. 2: Payment number two shall equal [CONFIDENTIAL
MATERIAL REDACTED] and be due upon the Launch of the Customer's EchoStar II
satellite, plus three business days, but in no event shall payment number 2
be due later than September 30, 1996.
5.1.3 REMAINING PAYMENTS: The balance of the payments for the
Launch Service as set forth in Article 2 entitled "Services To Be Provided"
shall be paid in accordance with the Table 5.1 launch payment schedule
below. As used in the payment schedule below, "L" shall mean [CONFIDENTIAL
MATERIAL REDACTED] If a payment due date falls on a Saturday, Sunday or
legal bank holiday, then payment shall be due on the following business
day.
TABLE 5.1. LAUNCH PAYMENT SCHEDULE.
Payment
Payment Number Amount Due Date
-------------- ---------- ----
[CONFIDENTIAL [CONFIDENTIAL [CONFIDENTIAL
MATERIAL MATERIAL MATERIAL
REDACTED] REDACTED] REDACTED]
5.2 WIRE TRANSFER INSTRUCTIONS All payments to Contractor will be by wire
transfer to the following address:
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Lockheed ▇▇▇▇▇▇ Commercial Launch Services
Citibank N.A.
▇▇▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
Acct# 40678123
5.3 INVOICES Contractor shall submit invoices thirty (30) days in advance of
the scheduled payment due dates. Payments shall be deemed made when credit for
the payable amount is established in Contractor's designated bank account.
5.4 INTEREST ON PAYMENTS DUE If any amount due to either Party under this
Contract shall remain unpaid after its due date, then the paying Party shall pay
interest to the other Party at the prevailing prime interest rate (as charged by
the Chase Manhattan Bank, New York City). Interest will be computed commencing
on the day following such due date to and including the day payment is actually
made.
5.5 ACCELERATED PAYMENTS
5.5.1 ACCELERATED LAUNCH SERVICE: In the event that the Launch
Service is accelerated as described in Article 7 entitled "Launch Schedule
Adjustments," the next payment due for such Launch Service following such
acceleration shall be increased to include the balance of the payments that
would have been made had the Contract payments been scheduled on the basis
of the accelerated Launch Period.
5.6 POSTPONED PAYMENTS
5.6.1 POSTPONEMENTS BY CONTRACTOR: In the event of postponement
declared by Contractor for any reason including those in Article 7 and
Article 8, the Contract payments shall be suspended for the length of the
delay and then resumed with all remaining payments postponed by the amount
of the delay. Notwithstanding the above, in the event of a postponement
declared by the Contractor the final payment shall remain due in accordance
with Article 5.1 of this Contract.
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5.6.2 POSTPONEMENTS BY CUSTOMER: In the event of postponement
declared by Customer for any reason including those in Article 7 and
Article 8, the Contract payments shall not be suspended and shall
remain due based upon the effective Launch Period, or Launch Slot or Launch
Date if established, prior to the postponement, except as set forth in
5.6.3 below.
5.6.3 POSTPONEMENTS UNDER ARTICLE 7.1.3 AND 7.1(c): In the
event the Customer exercises its postponement rights in accordance with
Article 7.1.3 or 7.1(c) of this Contract, the Customer shall be entitled to
suspend each remaining payment for the length of the delay.
5.7 PAYMENT TERMS FOR REFLIGHT OR REFUND PROTECTION Payment terms for Reflight
or Refund Protection, as may be elected by the Customer in accordance with
Articles 4 entitled "Contract Price" and 19 entitled "Reflight or Refund" of
this Contract, are as set forth in Article 19 of this Contract.
ARTICLE 6
LAUNCH SCHEDULE
6.1 LAUNCH PERIOD The Launch Period for the Launch as to which Contractor
is providing a Launch Service shall be as follows:
Launch Number Launch Period
------------- -------------
1 1 September 1997-30 November 1997, inclusive
6.2 LAUNCH SLOT At least nine (9) months prior to the first day of the
Launch Period, Contractor will give notice to Customer of a proposed Launch Slot
within the Launch Period, taking into account the requirements for a Launch
Opportunity. The Parties will cooperate in good faith to finalize the selection
of a Launch Slot. However, in the event that the Parties cannot mutually agree
upon a Launch Slot within thirty (30) days of Contractor's proposal, Contractor
shall make such determination taking into account the available Launch
Opportunities and the requirements and interests of Customer.
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6.3 LAUNCH DATE At least four (4) months prior to the first day of the
Launch Slot, Contractor will give notice to Customer of a proposed Launch Date
within the Launch Slot, taking into account the requirements for a Launch
Opportunity. The Parties will cooperate in good faith to finalize the selection
of a Launch Date. However, in the event that the Parties cannot mutually agree
upon a Launch Date within thirty (30) days of Contractor's proposal, Contractor
shall make such determination in good faith taking into account the available
Launch Opportunities and the requirements and interests of Customer.
ARTICLE 7
LAUNCH SCHEDULE ADJUSTMENTS
7.1 CUSTOMER LAUNCH SCHEDULE ADJUSTMENTS Without limiting the Customer's
rights under Article 8 of this Contract entitled "Excusable Delays", Customer
may request either a postponement for the reasons set forth in 7.1(a), 7.1(b) or
7.1(c) or advancement of the Launch Slot or Launch Date previously determined
under Article 6 of this Contract entitled "Launch Schedule," by giving notice to
Contractor proposing a new Launch Period, Launch Slot or Launch Date. The
Parties will cooperate in good faith to select a new Launch Period, Launch Slot
or Launch Date. However, in the event that the Parties cannot mutually agree
within sixty (60) days of Customer's notice (or such shorter time period as
Contractor may determine, in light of the proximity to the Launch), Contractor
shall make such determination in good faith taking into account the available
Launch Opportunities and the requirements and interests of Customer. Until the
new Launch Period, Launch Slot or Launch Date is selected in accordance with
this Paragraph 7.1, the then-current launch schedule shall remain in effect.
7.1(a) The Customer may request a delay (equal to the schedule impact)
to the Launch Period, or Launch Slot or Launch Date if established in the
event the Satellite manufacturer experiences delays in the delivery
schedules of the Satellite.
7.1(b) Notwithstanding and in addition to the foregoing, the Customer
may postpone the Launch Period, Launch Slot or Launch Day, for other
reasons, provided that the cumulative amount of such postponement(s)
does not exceed [CONFIDENTIAL MATERIAL REDACTED]
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7.1(c) The Customer may delay (to the extent of the delay so caused)
the Launch Period, Launch Slot or Launch Date if established, in
the event the Contractor damages the Customer's Satellite and it can be
determined that the damage caused a delay to the launch schedule.
7.1.1 If the launch schedule adjustment results in a later Launch
Period, Launch Slot or Launch Date, then only the total number of calendar
days of delay originally requested by Customer shall be attributed to
Customer.
7.1.2 Postponements by Customer under this Article 7 for the
Launch Service shall not exceed [CONFIDENTIAL MATERIAL REDACTED] except as
stated in Article 7.1.3 below or delays under 7.1(c) above. In the event
that a single postponement, or cumulative postponements, attributed to
Customer exceed such maximum permissible postponement for the Launch
Service, the Launch Service shall, at the election of Contractor, be
subject to termination by Contractor in accordance with Article 21 of this
Contract entitled "Termination."
7.1.3
[CONFIDENTIAL MATERIAL REDACTED]
7.1.4 RANGE SUPPORT: Should Range Support be initiated prior to
the receipt of Customer's notice of postponement Customer will pay an
amount of U.S. [CONFIDENTIAL MATERIAL REDACTED] to Contractor within thirty
(30) days of receipt of the Contractor's invoice for such amount. Range
Support, as used in the preceding sentences, means those activities
conducted by the Contractor and/or United States Government in connection
with a Launch Service as described in Exhibit A entitled "Statement of
Work" and which are conducted no earlier than seven (7) days prior to
Launch.
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7.2 CONTRACTOR LAUNCH SCHEDULE ADJUSTMENTS: Without limiting the
Contractor's rights under Article 8 of this Contract entitled "Excusable
Delays", Contractor may postpone, for the reasons set forth in Articles
7.2(a), and 7.2(b) below, the Launch Period, Launch Slot or Launch Date
previously determined under Article 6 entitled "Launch Schedule" by giving
notice to Customer proposing a new Launch Period, Launch Slot or Launch Date.
The Parties will cooperate in good faith to select a new Launch Period,
Launch Slot or Launch Date. However, if the Parties cannot mutually agree
within sixty (60) days of Contractor's proposal (or such shorter time period
as Contractor may determine, in light of the proximity to the Launch),
Contractor shall make such determination in good faith taking into account
the available Launch Opportunities and the requirements and interests of
Customer. Until the new Launch Period, Launch Slot or Launch Date is
selected in accordance with this Paragraph 7.2, the then-current launch
schedule shall remain in effect.
7.2(a)
[CONFIDENTIAL MATERIAL REDACTED]
7.2(b) Notwithstanding and in addition to the foregoing, the
Contractor may postpone the Launch Period, Launch Slot or Launch Day, due
to short delays occasioned by delays of launch(es) of other customers
scheduled prior to the Customer's Launch.
7.2.3 If the final launch schedule adjustment results in a later
Launch Period, Launch Slot or Launch Date, then the total number of
calendar days of delay originally requested by Contractor shall be
attributed to Contractor.
7.2.4 Total postponements by Contractor under this Article 7 shall
not exceed a total of [CONFIDENTIAL MATERIAL REDACTED] In the event that a
single postponement, or cumulative postponements, attributed to Contractor
exceed such maximum permissible postponement, the Launch Service shall be
subject to termination by Customer in accordance with Paragraph 21.2
entitled "Termination by Customer for Excessive Launch Postponement."
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7.3 Reserved
7.4 EXCUSABLE DELAYS Days during which an Excusable Delay exists as defined
in Article 8 entitled "Excusable Delays" and which affect the launch
schedule will not be included in determining the length of a postponement
attributable to either Contractor or Customer under this Article 7.
7.5 Reserved
7.6 POSTPONEMENTS ATTRIBUTED TO NON-COMPLYING PARTY UNDER ARTICLE 10 :
Should the failure of either Party to provide required data, hardware and
services result in a delay to the launch schedule, then such non-complying
Party shall be charged with a postponement under this Article 7 upon notice
by the other Party. Requirements to provide data, hardware and services,
delays and the length of postponement chargeable to the non-complying Party
are described in Article 10 entitled "Additional Contractor and Customer
Obligations Prior to Launch."
7.7 OBLIGATION TO GIVE PROMPT NOTICE Contractor and Customer acknowledge and
agree that it is in the best interests of both Parties to promote certainty in
launch schedule decisions and minimize disruption to other customers of
Contractor. Therefore, the Parties agree to give prompt notice of any need for
schedule change under this Article 7 or any actual or potential delay which
might impact the launch schedule.
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ARTICLE 8
EXCUSABLE DELAYS
8.1 EXCUSABLE DELAYS DEFINED Neither Party shall be liable to the other in the
event of a delay in the performance of its obligations or commitments, and the
date on which those obligations are to be fulfilled shall be extended for the
period of time of such delay, when the delay was due to causes beyond the
control and not due to the fault of negligence of the Party subject to the
delay. Subject to the foregoing, Excusable Delays shall include, but not be
limited to, the following: Acts of God, unforeseeable circumstances, acts
(including delay or failure to act) of any governmental authority (de jure or de
facto), inability of either Party to obtain any necessary export licenses, wars
(declared or undeclared), riot, revolution, hijacking, fires, strikes, freight
embargoes, labor stoppage, sabotage, epidemics, interruptions of essential
services and supplies such as electricity, natural gas, fuels and water, adverse
weather or launch safety conditions which do not permit launching, range
availability, maintenance of appropriate clearance times between flights, delays
due to any replacement launch required under any other customer agreement(s)
with Contractor, inability to timely obtain from insurance underwriters
necessary and proper third party liability insurance including insurance for
damage to government property, or any condition which jeopardizes the safety of
employees of Contractor, Customer or their respective Related Third Parties.
Delays due to Atlas launch vehicle failures shall not be considered Excusable
Delays.
8.2 NOTICE(S) OF EXCUSABLE DELAYS Contractor and Customer acknowledge and
agree that it is in the best interests of both Parties to promote certainty in
launch schedule decisions and minimize disruption to other customers of
Contractor. Therefore, the Parties agree to give prompt notice of any actual or
potential Excusable Delay under this Article 8.
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ARTICLE 9
COORDINATION AND COMMUNICATION BETWEEN
CUSTOMER AND CONTRACTOR
9.1 PROJECT COORDINATORS Each Party hereby identifies to the other a single
technical point of contact to coordinate the activities under this Contract.
The technical points of contact are not authorized to direct work contrary to
the requirements of this Contract or make modifications to this Contract. All
modifications to the terms, conditions and requirements of this Contract shall
be made pursuant to Article 25 entitled "Amendment."
Contractor's Technical Point of Contact is:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Mission Manager
Lockheed ▇▇▇▇▇▇ Commercial Launch Services, Inc.
▇.▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
303.977.0153-Telephone
303.971.2472-Facsimile
Customer's Technical Point of Contact is:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
DBS Program Manager
Echostar Space Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
303.7999.8222 Ext 4714
303.799.9430-Facsimile
9.2 NOTICES All notices that are required or permitted to be given under this
Contract shall be in writing and shall be delivered in person or sent by mail or
air courier service, postage prepaid, to the representative and address set
forth below, or to such other representative or address specified in a notice to
the other Party. Notices shall be deemed effective upon delivery in person, or
three (3) days after deposit in the mail or air courier service as described
above if mailed within the continental United States, or seven (7) days after
deposit in the mail or air courier service as described above, return receipt
requested, if mailed to or from a location outside of the continental United
States. Notices which are delivered other than as described above shall be
effective on receipt.
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Notices to Contractor:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Manager of Commercial Contracts
Lockheed ▇▇▇▇▇▇ Commercial Launch Services, Inc.
▇.▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
303.977.4961-Telephone
303.971.2472-Facsimile
Notices to Customer:
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President and General Counsel
EchoStar Space Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
303.799.8222 Ext 5323
303.799.0354-Facsimile
9.3 COMMUNICATIONS IN ENGLISH: All documentation, notices, reports and
correspondence under this Contract shall be submitted and maintained in the
English language.
ARTICLE 10
ADDITIONAL CONTRACTOR AND CUSTOMER OBLIGATIONS
PRIOR TO LAUNCH
10.1 OBLIGATION TO PROVIDE INFORMATION Contractor shall provide to
Customer the data, hardware and services identified in Section 6 of Exhibit A
entitled "Statement of Work", and Customer shall provide to Contractor the
data, hardware and services identified in Section 7 of Exhibit A, in
accordance with the schedules contained therein. The data, hardware and
services will be received in a condition suitable for their intended use.
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10.2 REQUIREMENT TO CURE NON-COMPLIANCE In the event that data, hardware
or services specified above are not received in accordance with the schedules
set forth therein or such data, hardware or services are not suitable for
their intended use when received, and such non-compliance has or is
anticipated to negatively impact the launch schedule, in the reasonable
judgment of the Party intended to receive such data, hardware or services,
then the Party intended to receive the data, hardware or services shall
promptly give notice to the non-complying Party of the non-compliance. The
notice shall describe the non-compliance and recommend solutions. The
non-complying Party shall respond within seven (7) days by giving notice that
shall include, but not be limited to, the non-complying Party's statement
that either (a) no non-compliance has occurred or (b) it has cured such
non-compliance or has implemented a plan to cure such non-compliance within a
reasonable period of time, the actual or estimated date by which such cure
has been or will be completed and an analysis of the impact of such
non-compliance on the other Party' continuing performance of its obligations
under this Contract. Upon receipt of the non-complying Party's notice, the
other Party shall use its best efforts to continue to perform its obligations
under the Contract, minimize launch schedule disruption due to such
non-compliance.
10.3 IMPACT OF NON-COMPLIANCE ON LAUNCH SCHEDULE If the non-complying
Party's non-compliance results in a delay to the launch schedule, then the
non-complying Party will be charged with a postponement under Article 7
entitled "Launch Schedule Adjustments" from the first date of the Launch
Period, Launch Slot or Launch Date then in effect ( unless a notice of a
proposed change has been given) until the first day of the new Launch Period,
Launch Slot or Launch Date determined in accordance with Article 7.
10.4 INTERFACE CONTROL DOCUMENT In the event the ICD is not available at
the time of Contract execution, the Parties shall cooperate in good faith and
within a reasonable time generate a mutually acceptable ICD that shall be
designated as Exhibit B to this Contract upon such acceptance.
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ARTICLE 11
FACTORY AND LAUNCH SITE ACCESS
11.1 RIGHT OF ACCESS Subject to appropriate security and safety
limitations, Customer shall have access to the Atlas, Centaur and Customer's
mission hardware final assembly areas to witness final acceptance activities.
Customer will similarly have access to the Cape Canaveral Air Station
(CCAS), Florida, launch complex and Satellite encapsulation area to witness
major Customer-related mission tests and to attend regular coordination
meetings. Major launch vehicle tests shall include the Wet Dress Rehearsal
(WRD), Flight Event Demonstration (FED) and Combined Electrical Readiness
Test (CERT).
ARTICLE 12
LICENSES, CLEARANCES AND PERMITS
12.1 RESPONSIBILITY FOR LICENSES, CLEARANCES AND PERMITS Each Party shall
be responsible for obtaining any licenses, clearances or permits, and for
taking any actions necessary to carry out its obligations under this
Contract. Contractor shall be responsible for obtaining all governmental
authorizations necessary for the performance of Contractor's obligations
hereunder.
12.2 TRANSFERS OF TECHNICAL DATA Each Party shall be responsible for
compliance with applicable United States Government regulations relating to
the transfer of technical data to the other Party or to Third Parties.
12.3 Reserved
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ARTICLE 13
COMPLIANCE WITH UNITED STATES GOVERNMENT REQUIREMENTS
13.1 CUSTOMER COMPLIANCE WITH REQUIREMENTS Contractor has executed
agreements with various United States Government agencies for use of United
States Government-owned property and facilities relating to the production of
Launch Vehicles and launch operations at CCAS in Florida. Customer agrees
that it will comply with the United States Government's laws and regulations
as they relate to Customer-furnished property and personnel, and those
agreements relating directly to the United States commercial expendable
launch vehicle program. Contractor shall furnish copies of these agreements
to Customer upon request. Customer will indemnify Contractor for any Customer
violation of these laws, regulations or agreements. In furtherance of the
foregoing, Customer shall, before Launch, execute and deliver the Agreement
for Waiver of Claims and Assumption of Responsibility, the execution of which
is required by the United States Department of Transportation as a condition
of granting Contractor's license to Launch the Satellite.
13.2 GOVERNMENT NEED It is the policy of the United States Government to
support the commercialization of domestic launch services by making available
to United States launch services providers its launch-related facilities.
However, both Customer and Contractor agree that, in the event of imperative
national need as set forth in the CSLA, the United States Government may
require use of United States Government or Contractor property and personnel.
In event such use by the United States Government necessitates subsequent
rescheduling of Customer's launch(es), Contractor will promptly notify
Customer of the delay(s) and will reschedule any affected Launch(es) to
accommodate all customers to the extent possible. Such delay shall be
considered an Excusable Delay under Article 8. The United States Government
shall not be liable to Customer for any costs or damages, including
consequential damages, arising out of a delay caused by such priority use of
property or personnel.
ARTICLE 14
COMPLETION OF CONTRACTOR'S OBLIGATION
14.1 COMPLETION OF LAUNCH SERVICES For a Launch Service in which Customer
has not elected a Reflight Launch or Refund, the Launch Services to be
provided under this Contract shall be considered complete upon Launch and the
submission of data required by Exhibit A entitled "Statement of Work,"
Section 4.1.3, entitled "Post Launch Reports". Contractor assumes no other
liabilities or obligations for launch performance.
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14.2 COMPLETION OF LAUNCH SERVICES WHEN REFLIGHT OR REFUND ELECTED For a
Launch Service in which Customer has elected Reflight Launch or Refund
coverage, such Launch Service shall be considered complete upon a Success,
or, in the event of a Total Failure, Constructive Total Failure or Partial
Failure under Paragraph 19.5 entitled "Failure Review Board," shall be
considered complete except for such Reflight Launch or Refund coverage.
Contractor assumes no other liabilities or obligations for launch performance.
14.3 COMPLETION OF LAUNCH SERVICES WHEN REPLACEMENT LAUNCH ELECTED For a
Launch Service in which the Customer has elected a Replacement Launch, such
Launch Service shall be considered complete upon a Success, or in the event
of a Launch Vehicle Mission Failure or Satellite Mission Failure under
Article 20 entitled "Replacement Launch", shall be considered complete except
for such Replacement Launch. Contractor assumes no further liabilities or
obligations for launch performance.
ARTICLE 15
ALLOCATION OF CERTAIN RISKS
15.1 WAIVER OF LIABILITY
15.1.1 Contractor and Customer hereby agree to a reciprocal waiver of
liability pursuant to which each Party agrees not to bring a claim in
arbitration or otherwise or ▇▇▇ the other Party, the United States
Government or Related Third Parties of the other Party for any property
loss or damage it sustains and any property loss or damage, personal injury
or bodily injury, including death, sustained by any of its employees,
directors, officers and agents, arising in any manner in connection with
the performance of or activities carried out pursuant to this Contract, or
other activities in or around the launch site or Satellite processing area,
or the operation or performance of the Launch Vehicle or the Satellite.
Such waiver of liability shall also extend to any indirect special,
incidental or consequential damages or other loss of revenue or business
injury or loss resulting from any delay in Launch, damages to the Satellite
before or after Launch or from the failure of the Satellite to reach its
planned orbit or operate properly. In no event shall this reciprocal
waiver of liability prevent or encumber enforcement of the Parties'
contractual rights and obligations to each other under this Contract.
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15.1.2 Claims of liability are waived and released regardless of
whether loss, damage or injury arises from the acts or omissions, negligent
or otherwise, of either Party or its Related Third Parties. This waiver
shall extend to all theories of recovery, including in contract for
property loss or damage, tort, product liability and strict liability.
15.1.3 Contractor and Customer shall each extend the waiver and
release of claims of liability as provided in Paragraphs 15.1.1 and 15.1.2
to its Related Third Parties (other than employees, directors and officers)
by requiring them to waive and release all claims of liability they may
have against the other Party, its Related Third Parties, the United States
Government and its contractors and subcontractors at every tier and to
agree to be responsible for any property loss or damage, personal injury
or bodily injury, including death, sustained by them arising in any manner
in connection with the performance of or activities carried out pursuant to
this Contract, or other related activities in or around the launch site or
Satellite processing area, or the operation or performance of the Launch
Vehicle or the Satellite.
15.1.4 The waiver and release by each Party and its Related Third
Parties of claims of liability against the other Party and the Related
Third Parties of the other Party extends to the successors and assigns,
whether by subrogation or otherwise, of the Party and its Related Third
Parties. Each Party shall obtain a waiver of subrogation and release of
any right of recovery against the other Party and its Related Third Parties
from any insurer providing coverage for the risks of loss for which the
Party hereby waives claims of liability against the other Party and its
Related Third Parties.
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15.2 INDEMNIFICATION - PROPERTY LOSS AND DAMAGE AND BODILY INJURY
15.2.1 To the extent that such liability is not covered by an
insurance policy of either Contractor or Customer, Contractor and
Customer each agree to defend, hold harmless and indemnify the other
Party and its Related Third Parties, for any liabilities, costs and
expenses (including attorneys' fees, costs and expenses), arising as a
result of claims brought by Related Third Parties of the indemnifying
Party, for property loss or damage, personal injury or bodily injury,
including death, sustained by such Related Third Parties, arising in any
manner in connection with the activities carried out pursuant to this
Contract, other activities in and around the launch site or the
Satellite processing area, or the operation or performance of the Launch
Vehicle or the Satellite. Such indemnification shall extend to any
claim for indirect damages, consequential damages or other loss of
revenue or business injury or loss resulting from any loss of or damage
to the Satellite before or after launch or from the failure of the
Satellite to reach its planned orbit or operate properly.
15.2.2 To the extent that such claims of liability are not covered
by the third party liability insurance referred to in Paragraph 16.1
entitled "Third Party Liability Insurance," or an insurance policy of
either Contractor or Customer or not paid by the United States Government
(as provided in Paragraph 16.2 entitled "Insurance Required by Launch
License"), Contractor will defend, hold harmless and indemnify Customer and
its Related Third Parties for any and all claims of Third Parties, for
property loss or damage, personal injury or bodily injury, including death,
arising in any manner from the operation or performance of the Launch
Vehicle.
15.2.3 To the extent that such claims of liability are not covered
by the third party liability insurance referred to in Paragraph 16.1
entitled "Third Party Liability Insurance," or an insurance policy of
either Contractor or Customer or not paid by the United States Government
(as provided in Paragraph 16.2 entitled "Insurance Required by Launch
License,"), Customer will defend, hold harmless and indemnify Contractor
and its Related Third Parties for any and all claims of Third Parties, for
property loss or damage, personal injury or bodily injury, including death,
arising in any manner from the operation or performance of the Satellite
or from any claim for indirect damages, consequential damages or other loss
of revenue or business injury or loss resulting from any loss of or damage
to the Satellite before or after Launch or from the failure of the
Satellite to reach its planned orbit or operate properly.
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15.2.4 Notwithstanding Paragraphs 15.2.2 and 15.2.3 above, Contractor
shall not be obligated to defend, hold harmless or indemnify Customer for
any claim brought by a Third Party against Customer resulting from any
damage to or loss of the Satellite, whether sustained before or after
Launch and whether due to the operation, performance, non-performance or
failure of the Launch Vehicle or due to any other causes. Customer shall
defend, hold harmless and indemnify Contractor for any claims brought by
Third Parties against Contractor for damage to or loss of the Satellite,
whether sustained before or after Launch or whether due to the operation,
performance, non-performance or failure of the Launch Vehicle or due to
other causes.
15.2.5 The indemnification provided by this Article for property
loss or damage, personal injury or bodily injury extends to all damage or
injury regardless of whether such loss, damage or injury arises from the
acts or omissions, whether negligent or otherwise, of either Party.
15.2.6 The right of either Party or Related Third Parties to
indemnification under this Article is not subject to subrogation or
assignment and either Party's obligation set forth herein to indemnify the
other Party or Related Third Parties extends only to that Party or those
Related Third Parties and not to others who may claim through them by
subrogation, assignment or otherwise.
15.3 INDEMNIFICATION BY UNITED STATES GOVERNMENT
15.3.1 The Parties recognize that under the CSLA and subject
thereto, the Secretary of Transportation shall, 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, provide for the
payment by the United States Government of successful claims (including
reasonable expenses of litigation or settlement) of a Third Party against
Contractor or subcontractors, or Customer or its contractors or
subcontractors, resulting from activities carried out pursuant to a license
issued or transferred under the CSLA for death, bodily injury, or loss of
or damage to property resulting from activities carried out under the
license, but only to the extent that the aggregate of such successful
claims arising out of the Launch:
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15.3.1.1 is in excess of the amount of insurance or
demonstration of financial responsibility
required of Contractor under its license issued
pursuant to the CSLA; and
15.3.1.2 is not in excess of the level that is
$1,500,000,000 (plus any additional sums
necessary to reflect inflation occurring after
January 1, 1989) above the required amount of
insurance or demonstration of financial
responsibility required by the CSLA.
15.3.2 Contractor makes no representation or warranty that any
payment of claims by the United States Government will be available
pursuant to the CSLA. Contractor's sole obligation is the good faith
effort to obtain such payment as may be available from the United States
Government.
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15.4 INDEMNIFICATION - INTELLECTUAL PROPERTY INFRINGEMENT
15.4.1 Contractor shall defend, hold harmless and indemnify Customer
and its Related Third Parties for any and all claims resulting from the
infringement, or claims of infringement, of the patent rights or any
other intellectual property rights of a Third Party, that may arise from
Contractor's provision of Launch Services.
15.4.2 Customer shall defend, hold harmless and indemnify Contractor
and its Related Third Parties for any and all claims resulting from the
infringement, or claims of infringement, of the patent rights or any other
intellectual property rights of a Third Party, that may arise from the
design, manufacture, launch or operation of Customer's Satellite.
15.5 RIGHTS AND OBLIGATIONS The rights and obligations specified in Paragraphs
15.2 and 15.3 shall be subject to the following conditions:
15.5.1 The Party seeking indemnification shall promptly advise the
other Party in writing of the filing of any suit, or of any written or oral
claim alleging an infringement of any Related Third Party's or any Third
Party's rights, upon receipt thereof; and shall provide the indemnitor, at
the indemnitor's request and expense, with copies of all relevant
documentation.
15.5.2 The Party seeking indemnification shall not make any admission
nor shall it reach a compromise or settlement without the prior written
approval of the other Party, which approval shall not be unreasonably
withheld or delayed.
15.5.3 The Party required to indemnify, defend and hold the other
harmless shall assist in and shall have the right to assume, when not
contrary to the governing rules of procedure, the defense of any claim or
suit or settlement thereof, and shall pay all reasonable litigation and
administrative costs and expenses, including attorney's fees, incurred in
connection with the defense of any such suit, shall satisfy any judgments
rendered by a court of competent jurisdiction in such suits, and shall make
all settlement payments.
15.5.4 The indemnitee may participate in any defense at its own
expense, using counsel reasonably acceptable to the indemnitor, provided
that there is no conflict of interest and that such participation does not
otherwise adversely affect the conduct of the proceedings.
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15.6 INCONSISTENCY WITH GOVERNMENT AGREEMENT In the event of any inconsistency
between any provision of Article 16 "Insurance" and the Agreement for Waiver of
Claims and Assumption of Responsibility referred to in Paragraph 13.1, such
Agreement shall be construed and interpreted so as to be made consistent with
this Contract.
15.7 SURVIVAL OF OBLIGATIONS All indemnities, obligations, liabilities and
payments provided for in this Article 15 shall survive, and remain in full force
and effect, notwithstanding the expiration or other termination of this Contract
and, subject to the limitations set forth in this Article 15, notwithstanding
any other provision of this Contract to the contrary.
ARTICLE 16
INSURANCE
16.1 THIRD PARTY LIABILITY INSURANCE Contractor shall procure and maintain in
effect insurance for third party liability to provide for the payment of claims
resulting from property loss or damage or bodily injury, including death,
sustained by Third Parties in connection with the performance of this Contract
by either Party or the Related Third Parties of either Party or by the United
States Government. The insurance shall have a limit of U.S. $164,000,000 per
occurrence and in the aggregate, or such other amount as may be required by the
United States Department of Transportation. Coverage for damage, loss or injury
arising in any manner in connection with the services provided under this
Contract shall attach upon arrival of the Launch Vehicle at CCAS and for third
party liability arising in any manner in connection with the handling,
processing or Launch of the Satellite will attach from the time the Satellite is
under the care, custody and control of Contractor or its subcontractors.
Coverage for third party liability will terminate upon the return of all parts
of the Launch Vehicle to Earth or twelve (12) months, whichever is earlier and
for the Satellite, shall terminate twelve (12) months following the date of
Launch unless the Satellite is removed from the Satellite processing area or
CCAS other than by Launch, in which case, coverage shall extend only until such
removal. Such insurance shall not cover loss of or damage to the Satellite even
if such claim is brought by any Third Party or Related Third Parties. Such
insurance also shall not pay claims made by the United States Government for
loss of or damage to United States Government property in the care, custody and
control of Customer or Contractor.
16.2 INSURANCE REQUIRED BY LAUNCH LICENSE Contractor shall provide such
insurance as is required by the launch license issued by the United States
Department of Transportation for loss of or damage to United States Government
property.
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16.3 MISCELLANEOUS REQUIREMENTS The Third Party liability insurance shall name
as named insured Contractor and as additional insured Customer and the
respective Related Third Parties of the Parties identified by each Party, the
United States Government and any of its agencies. Such insurance shall provide
that the insurers shall waive all rights of subrogation that may arise by
contract or at law against any named insured or additional insured.
ARTICLE 17
LIMITATION OF LIABILITY AND WARRANTY
17.1 NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY PROVIDED IN THIS
ARTICLE 17, CONTRACTOR HAS NOT MADE NOR DOES IT MAKE ANY REPRESENTATION OR
WARRANTY, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF DESIGN, OPERATION, CONDITION, QUALITY, SUITABILITY
OR MERCHANTABILITY OR OF FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, ABSENCE OF
LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, WITH REGARD TO THE SUCCESS
OF ANY LAUNCH OR OTHER PERFORMANCE OF ANY LAUNCH SERVICE(S) HEREUNDER.
17.2 EXCLUSION OF LIABILITY WITHOUT LIMITING OR CREATING EXCEPTIONS TO THE
RECIPROCAL WAIVER OF LIABILITY SET FORTH IN ARTICLE 15, OR THE EXCLUSIVE
REMEDIES SET FORTH IN ARTICLE 18, (1) IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER AND TO PERSONS CLAIMING BY OR THROUGH SUCH PARTY UNDER ANY THEORY
OF TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR UNDER ANY OTHER LEGAL OR
EQUITABLE THEORY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING WITHOUT LIMITATION, COSTS OF EFFECTING COVER, LOST PROFITS, LOST
REVENUES OR COSTS OF RECOVERING A PAYLOAD, ARISING OUT OF OR RELATING TO THIS
CONTRACT; AND (2) IN NO EVENT SHALL CONTRACTOR'S LIABILITY TO CUSTOMER FOR ANY
CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, INCLUDING, WITHOUT
LIMITATION, ANY CLAIM FOR TERMINATION, EXCEED THE AMOUNT OF THE CONTRACT PRICE
PAID BY CUSTOMER AS OF THE DATE OF SUCH CLAIM.
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ARTICLE 18
REMEDIES AND LIMITATIONS ON REMEDIES
The exclusive remedy for a Total Failure, Constructive Total Failure or Partial
Failure as determined under Paragraph 19.5 entitled "Failure Review Board" shall
be either Reflight Launch or Refund coverage, if Customer has elected such
protection under Article 19 entitled "Reflight or Refund." The exclusive
remedy for a Launch Vehicle Mission Failure or a Satellite Mission Failure shall
be a Replacement Launch, if customer has elected such protection under Article
20 of this Contract entitled "Replacement Launch". The exclusive rights and
remedies of Customer to terminate this Contract for convenience or in the event
of excessive launch postponements by Contractor are described in Paragraph 21.1
entitled "Termination by Customer for Convenience" and Paragraph 21.2 entitled
"Termination by Customer for Excessive Launch Postponements", respectively. The
exclusive rights and remedies of Contractor to terminate this Contract in the
event of nonpayment or excessive launch postponement by Customer are described
in Paragraph 21.3 entitled "Termination by Contractor for Nonpayment" and
Paragraph 21.4 entitled "Termination by Contractor for Excessive Launch
Postponement", respectively.
ARTICLE 19
REFLIGHT OR REFUND
19.1 REFLIGHT LAUNCH OR REFUND There is a single Launch Service Price for the
Launch Service to be provided. No later than one hundred and twenty (120) days
prior to the Launch Date, Customer may elect either Reflight Launch or Refund
protection in accordance with this Article 19 by giving notice to the
Contractor, which protection will be available in the event of a Total Failure,
Constructive Total Failure or Partial Failure as determined under Paragraph 19.5
entitled "Failure Review Board."
19.2 TERMS GOVERNING REFLIGHT LAUNCH The following conditions will apply if
Customer has elected Reflight Launch protection:
19.2.1 Immediately upon election of Reflight Launch protection, the
Contract Price specified in Article 4.1 of this Contract shall be adjusted
to include the Reflight Launch Fee as set forth in Article 4.1. Payment of
the Reflight Launch Fee shall be made to the Contractor within thirty (30)
days of the Contractor's invoice. The Contractor will invoice fifty
percent (50%) of the Reflight Fee upon the Customer's election and the
remaining fifty percent (50%) sixty (60) days prior to Launch.
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19.2.2 One (1) Reflight Launch will be provided in the event that a
Launch is a Total Failure or Constructive Total Failure only and not for a
Partial Failure, all as determined under Paragraph 19.5 entitled "Failure
Review Board." Any Reflight Launch(es) to which Customer may be entitled
under this Contract shall be deemed to be Launches for all purposes under
this Contract, except that Customer shall not be entitled to a second
Reflight Launch following a failure of a Reflight Launch.
19.2.3 Contractor will conduct a Reflight Launch within twelve (12)
months of notice from Customer requesting such Reflight Launch taking
into account all the requirements for a Launch Opportunity.
19.2.4 Reflight Launch protection does not include the cost of
the replacement Satellite.
19.2.5 The Reflight Launch will be governed by the terms and conditions
of this Contract, except for Article 4 entitled "Contract Price" and
Article 5 entitled "Payment."
19.2.6 The configuration and mission requirements of the replacement
Satellite must conform to the mission description contained in Exhibit B
entitled "Interface Control Document." In the event the satellite does not
conform as stated above, the Parties will negotiate in good faith an
equitable adjustment to accommodate changes to the satellite, if possible.
19.3 TERMS GOVERNING REFUND The following conditions will apply if Customer
elects Refund protection:
19.3.1 Immediately upon election of Refund protection, the Contract
Price specified in Article 4.1 of this Contract shall be adjusted to
include the Refund Fee as set forth in Article 4.1. Payment of the Refund
Fee shall be made to the Contractor within thirty (30) days of the
Contractor's invoice. The Contractor will invoice fifty percent (50%) of
the Reflight Fee upon the Customer's election and the remaining fifty
percent (50%) sixty (60) days prior to Launch.
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19.3.2 In the event that the Launch Service is a Total Failure or
Constructive Total Failure, as determined under Paragraph 19.5 entitled
"Failure Review Board," Contractor shall pay to Customer a Refund equal to
the Launch Service Price payments received by Contractor.
19.3.3 In the event that the Launch Service is a Partial Failure,
as determined under Paragraph 19.5 entitled "Failure Review Board,"
Contractor shall pay to Customer a Refund equal to a prorated amount of the
Launch Service Price payments received by Contractor. The proration to be
applied to determine the appropriate Refund shall be calculated as follows:
Proration = 2.5 X (90 - Cp)
Where, Cp (capability percentage) equals the percentage of planned
lifetime or operational capacity expected after Partial Failure.
19.3.4 Refunds will be paid within sixty (60) days after a Partial
Failure, Total Failure or Constructive Total Failure, as the case may be,
is confirmed under Paragraph 19.5 entitled "Failure Review Board."
19.3.5 In no event shall the aggregate amount of any Refund in
connection with a Launch Service exceed the Launch Service Price therefor.
19.4 TERMS APPLICABLE TO BOTH REFLIGHT LAUNCH AND REFUND
19.4.1 The Reflight Launch or Refund protection will attach upon
Launch and will terminate upon the earliest to occur of (a) a Total Failure
or Constructive Total Failure, in the case of Reflight Launch or Refund
protection, (b) Partial Failure in the case of Refund protection, or (c)
Satellite Separation. Damage to the Satellite following Satellite
Separation but caused by the Launch Vehicle shall be deemed to have
occurred prior to separation for purposes of Reflight Launch or Refund
protection.
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19.4.2 Customer will at all times act with due diligence and will
do all things practicable and reasonable to avoid or diminish any loss or
degradation of the lifetime or operational capability of the Satellite.
Prior to Launch, Customer will provide to Contractor all information
including, but not limited to, Satellite specifications, operating
conditions, performance parameters and changes thereto which could
materially affect the risk of loss of or damage to the Satellite or Launch
Vehicle to the full extent such information is provided to the Customer by
the satellite manufacturer, or otherwise developed by the Customer. Both
before and after Launch, Customer will respond to all reasonable written
requests by Contractor for information and/or certifications relating to
Satellite design, test, and quality control. In the event Contractor
determines, in its reasonable judgment, that Customer's Satellite
specifications, operating conditions, performance parameters and/or changes
thereto would affect the risk of loss of or damage to the Satellite or the
Launch Vehicle, then Contractor shall be entitled to renegotiate the terms
of this Article 19, including but not limited to a change in the fees
chargeable for such Reflight Launch or Refund protection, or to terminate
such protection and return all fees paid to date for such protection to
Customer.
19.4.3 If Contractor has not already convened a Failure Review Board,
then in the event Customer believes a Total Failure, Constructive
Total Failure or Partial Failure has occurred for which it is entitled to a
Reflight Launch or Refund as applicable hereunder, Customer shall give
written notice of the occurrence to Contractor as soon as possible, but in
no event later than the earlier of (a) thirty (30) days after a Corporate
Officer or Director of Customer becomes aware of the occurrence and (b) one
hundred and eighty (180) days after the termination of risk specified in
Paragraph 19.4.1. If Customer believes the occurrence entitles it to claim
a Reflight Launch or Refund as applicable hereunder, Customer shall deliver
to Contractor a sworn and notarized proof of loss in such form and
including such information as Contractor may reasonably require and request
as soon as practicable, but in no event later than one hundred and eighty
(180) days after the delivery of the notice of occurrence.
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19.4.4 In the event that any Refund, whether total or partial, is
made to Customer and it is later determined that the anticipated
degradation of the lifetime or operational capability of the Satellite is
reduced or eliminated, Customer will return to Contractor, within forty
five (45) days of such determination, an amount such that the Refund
retained by Customer equals the amount that would have been paid for the
extent of degradation as revised. Reasonable sums expended by the Customer
to reduce the extent of degradation shall be deducted from the amount to be
returned to the Contractor.
19.4.5 In the event that a Reflight Launch is provided to Customer
and it is later determined that the original Launch Service described in
Article 2 entitled "Services To Be Provided" for which such Reflight Launch
was provided is no longer a Total Failure or Constructive Total Failure, as
determined by the Failure Review Board described in Paragraph 19.5 entitled
"Failure Review Board," then Customer will compensate Contractor for the
Reflight Launch by paying to Contractor the Launch Service Price
chargeable for the original Launch Service within thirty (30) days of
Contractor's invoice for such amount. Reasonable sums expended by the
Customer to reduce the extent of degradation shall be deducted from the
amount to be returned to the Contractor.
19.4.6 In the event that a Launch Service is declared a Constructive
Total Failure or Partial Failure and a Reflight Launch, in the case of
a Constructive Total Failure or Refund is provided by Contractor,
Contractor shall be entitled to any salvage value of the Satellite to the
extent of such Refund or value of such Reflight Launch. Such recovery
shall be in proportion with any salvage recovery due to Satellite insurers
as a result of any claim paid under the Satellite insurance program.
Salvage value shall extend to any profits derived from the sale, lease, or
other use or disposal of the Satellite or any portion thereof.
19.4.7 No later than ninety (90) days prior to the established
Launch Date for any Launch Service, Customer may replace an elected Refund
with a Reflight Launch or an elected Reflight Launch with a Refund. In no
event may a Refund or Reflight Launch be canceled in total. Customer must
give notice to Contractor of its desire to replace a Reflight Launch with a
Refund or replace a Refund with a Reflight Launch. The Contract Price will
be adjusted to reflect the change in fees chargeable for such changed
coverage. The credit or debit that results from a change to either
Reflight Launch or Refund will be paid within thirty (30) days of
Contractor's invoice for payment.
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19.4.8 The right of Customer to a Reflight Launch or Refund shall be
deemed to be lost and null and void if Customer conceals or misrepresents,
in writing or otherwise, any material fact or circumstance concerning the
Satellite.
19.4.9 Contractor shall have no obligation to provide a Reflight Launch
or Refund under this Article 19 for any loss, damage or failure caused
by or resulting from:
19.4.9.1 War, hostile or warlike action in time of peace or
war, including action in hindering, combating or defending against an
actual, impending, or expected attack by any government or sovereign
power (de jure or de facto); any authority maintaining or using a
military, naval or air force; a military, naval or air force; or any
agent of any such government, power, authority or force.
19.4.9.2 Any anti-satellite device or device employing atomic or
nuclear fission and/or fusion, or device employing laser or directed
energy beams.
19.4.9.3 Insurrection, strikes, riots, civil commotion, rebellion,
revolution, civil war, usurpation or action taken by a government
authority in hindering, combating or defending against such an
occurrence whether there be a declaration of war or not.
19.4.9.4 Confiscation by order of any government or governmental
authority or agency (whether secret or otherwise), or public
authority.
19.4.9.5 Nuclear reaction, nuclear radiation or radioactive
contamination of any nature, whether such loss or damage be direct or
indirect, except for radiation naturally occurring in the space
environment.
19.4.9.6 Electromagnetic or radio frequency interference, except
for physical damage to the Launch Vehicle and/or directly resulting
from such interference.
19.4.9.7 Willful or intentional acts of Customer, or any person
authorized by Customer (except the Range Safety Officer) to have
access to the Satellite and/or Launch Vehicle, designed to cause
loss or failure of the Satellite and/or Launch Vehicle.
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19.4.9.8 Loss of revenue, extra expenses, incidental damages or
consequential damages.
19.4.9.9 Claims made against Customer by third parties.
19.4.9.10 Any exclusions in addition to the foregoing or any
modifications thereto as are customary in first-party launch
insurance contracts.
19.5 FAILURE REVIEW BOARD In the event of a suspected Partial Failure, Total
Failure or Constructive Total Failure, implementation of this Article 19 shall
be based on the findings of the Failure Review Board. Customer will receive
notice of the findings of the Failure Review Board. If Contractor has not
already convened a Failure Review Board to evaluate a suspected Total Failure,
Constructive Total Failure or Partial Failure, then Customer may give notice to
Contractor requesting that a Failure Review Board be convened.
19.5.1 The Failure Review Board shall consist of those technical
disciplines determined by Contractor to be necessary to assess the failure,
its cause and necessary corrective action, if any, required for future
launches. Customer may provide representation to the Failure Review
Board, but such representation shall be limited to data review,
consultation and recommendation only. Customer will provide evidence of
the damage, if any, to the Satellite as a result of the failure. The
Failure Review Board shall make a determination of whether there has been a
Partial Failure, Total Failure or Constructive Total Failure and, in making
such determination, shall consider favorably the agreement of any insurers
providing coverage for such events to pay claims arising therefrom.
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19.5.2 In the event the Failure Review Board fails to render a
decision within ninety (90) days of the Launch or Customer and Contractor
do not otherwise reach mutual agreement as to occurrence of a Total
Failure, Constructive Total Failure or Partial Failure, or in the event
Customer disagrees with the findings of the Failure Review Board, both
Customer and Contractor shall promptly and without undue delay, each
appoint an expert in the field who is not associated with either Customer
or Contractor. The two (2) experts shall review all of the materials
provided to the Failure Review Board and, following this review, transmit
their findings in writing to Customer and Contractor at the same time. In
the event of disagreement between the two (2) experts, these experts shall
appoint a third expert who shall review the materials provided to the
Failure Review Board, and all decisions of this panel of three experts
shall be by majority vote. In the event the experts fail to agree upon
appointment of a third expert within thirty (30) days of written notice by
Customer and Contractor to appoint a third expert, Customer and Contractor
agree to allow (______* ) to select such third expert. Customer and
Contractor agree to be bound by the findings and/or appraisal of the first
two experts provided for under this Article or, if the first two experts
should disagree, by the majority vote of the three experts provided for
under this Article. Customer and Contractor shall each be responsible for
the cost of the selection and use of their respective appointed expert, and
both Customer and Contractor shall share equally the cost of the selection
and use of the third expert. The initial two experts, and the panel of
three experts if necessary, shall conduct their review and determination in
accordance with the rules of the American Arbitration Association for
resolution of disputes for commercial contracts.
*to be agreed to between Customer and Contractor.
ARTICLE 20
REPLACEMENT LAUNCH
20.1 TERMS GOVERNING REPLACEMENT LAUNCH The Customer may request a Replacement
Launch for a Launch Vehicle Mission Failure or Satellite Mission Failure,
provided that the Satellite Mission Failure must occur prior to the completion
of Satellite check-out.
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20.1.1 Contractor will conduct the Replacement Launch within twelve
(12) months of notice from Customer requesting such Replacement Launch,
taking into account all the requirements for a Launch Opportunity.
20.1.2 The Replacement Launch does not include the cost of a
replacement satellite.
20.1.3 The Replacement Launch will be governed by the terms of this
Contract. The Replacement Launch shall be deemed a Launch Service for all
purposes under this Contract, except that the Customer shall not be
entitled to a second replacement launch following a failure of the
Replacement Launch. Article 19 "Reflight or Refund" shall not apply to the
Replacement Launch.
20.1.4 The Contract Price and corresponding payment schedule for
the Replacement Launch will be determined by mutual agreement of the
Parties within sixty (60) days of Customer's notice requesting a
Replacement Launch. In the event the Parties have been unable to mutually
agree on a Contract Price for a Replacement Launch within such period of
time after reasonable attempts to do so, then this Article 20 shall be
deemed to be terminated and Contractor shall be released from its
obligation to provide a Replacement Launch.
20.1.5 The configuration and mission requirements of the replacement
satellite must conform to the mission description contained in Exhibit B
"Interface Control Document".
20.2 Contractor shall not be obligated to provide a Replacement Launch
to Customer in the event that Customer is entitled to a Reflight Launch
under the provisions of Article 19 of this Contract.
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ARTICLE 21
TERMINATION
21.1 TERMINATION BY CUSTOMER FOR CONVENIENCE Customer may terminate the
Launch Service under this Contract for any reason following written notice
to Contractor given at least thirty (30) days prior to the then-scheduled
Launch Period, Launch Slot or Launch Date. If Customer terminates the Launch
under this Paragraph 21.1, Contractor shall be entitled to retain the
Termination Charge set forth in Paragraph 21.6.
21.2 TERMINATION BY CUSTOMER FOR EXCESSIVE LAUNCH POSTPONEMENTS Customer
may terminate the Launch Service under this Contract if: (a) Contractor has
actually postponed or provided notice of postponement of such Launch Service
under Article 7 entitled "Launch Schedule Adjustments" for longer than the
permissible postponements under said Article. If Customer does not provide
a notice of termination to Contractor within sixty (60) days of postponement
or notice of postponement by Contractor, Customer waives its right to
terminate the postponed Launch Service under this Paragraph 21.2 unless
Contractor further postpones the Launch Service under Article 7. If Customer
terminates a Launch Service in accordance with this Paragraph 21.2,
Contractor shall reimburse Customer for all payments made to Contractor for
such Launch Service.
21.3 TERMINATION BY CONTRACTOR FOR NON-PAYMENT Contractor may terminate
the Launch Service under this Contract if Customer fails to make any payment
to Contractor relating to such Launch Service on the due date as required by
this Contract, provided Customer fails to remedy such non-payment within
thirty (30) days of notice from Contractor describing such non-payment and
stating Contractor's intent to terminate the Launch Service. If Contractor
terminates a Launch Service in accordance with this Paragraph 21.3,
Contractor shall be entitled to retain the Termination Charge set forth in
Paragraph 21.6.
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21.4 TERMINATION BY CONTRACTOR FOR EXCESSIVE LAUNCH POSTPONEMENTS
Contractor may terminate the Launch Service under this Contract if: (a)
Customer has actually postponed or given notice of postponement of such
Launch Service under Article 7 entitled "Launch Schedule Adjustments" for
more than the permissible postponements under said Article. If Contractor
does not provide a notice of termination to Customer within sixty (60) days
of postponement or notice of postponement by Customer, Contractor waives its
right to terminate the postponed Launch Service under this Paragraph 21.4
unless Customer further postpones the Launch Service under Article 7. If
Contractor terminates a Launch Service in accordance with this Paragraph
21.4, Contractor shall be entitled to retain the Termination Charge set forth
in Paragraph 21.6.
21.5 TERMINATION DATE The effective termination date of any Launch
Service terminated under this Article 21 shall be the effective date of
notice of termination.
21.6 TERMINATION CHARGE If a Launch Service is terminated in accordance
with the provisions of Paragraphs 21.1, 21.3 or 21.4, Contractor shall be
entitled to a Termination Charge equal to [CONFIDENTIAL MATERIAL REDACTED] of
all amounts paid or payable under Article 5 entitled "Payment" as of the
effective termination date for the terminated Launch Service,
[CONFIDENTIAL MATERIAL REDACTED] If such effective termination date falls
between the payment due dates, the Termination Charge attributable to such
partial period shall be prorated through the effective termination date.
Customer will pay to Contractor any unpaid portion of the Termination Charge
within thirty (30) days of Contractor's invoice. Contractor shall refund to
Customer any amount paid under this Contract for the terminated Launch
Service(s) in excess of the Termination Charge within thirty (30) days of the
effective termination date for such Launch Service.
21.7 EFFECT OF TERMINATION If either Party terminates a Launch Service
[or this Contract] under this Article 21, both Parties' obligations under
this Contract with respect to such Launch Service(s) shall be discharged as
of the Launch Service effective termination date except that the Contractor's
obligation to refund payments in accordance with Article 21.2, and Customer's
obligation to pay the Termination Charge described in Paragraph 21.6, as the
case may be, shall survive the termination of this Contract.
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ARTICLE 22
ARBITRATION
22.1 NOTICE OF ARBITRATION If any controversy or claim arising out of or
relating to this Contract or the breach thereof, including controversies
concerning the validity, scope or enforceability of this provision, fails to
be resolved through negotiation or mediation 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
Article 22.
22.2 RULES Arbitration proceedings in connection with this Contract shall
be administered by the American Arbitration Association in accordance with
its then in effect Commercial Arbitration Rules of the American Arbitration
Association, together with any relevant supplemental rules including but not
limited to its Supplementary Procedures for International Commercial
Arbitration, as modified by the terms and conditions of this Contract.
22.3 LANGUAGE Arbitration proceedings in connection with this Contract
shall be conducted in the English language, provided that at the request and
expense of the requesting Party, documents and testimony shall be translated
into any language specified by the requesting Party.
22.4 SELECTION OF ARBITRATORS Arbitration proceedings in connection with
this Contract shall be conducted before a panel of three (3) arbitrators.
Within fifteen (15) days after the notice 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 third arbitrator,
who shall serve as chairman of the arbitration panel.
22.5 LOCALE OF MEETINGS All meetings for arbitration proceedings in
connection with this Contract shall be held in Washington, D.C
22.6 INJUNCTIVE RELIEF Either Party to this Contract 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.
22.7 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.
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22.8 CONSOLIDATION Arbitration proceedings in connection with this
Contract may 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
Subcontractors are bound by an arbitration agreement which is substantially
similar to that contained in this Contract. If proceedings are consolidated,
all references to Party in this Article shall also mean Subcontractor.
22.9 AWARD AND JUDGMENT The arbitrators shall have no authority to award
punitive damages, or any other damages except as authorized under the express
terms and conditions of this Contract. 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 over the Parties or their assets
or application may be made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may be.
22.10 CONFIDENTIALITY Without the prior written consent of all Parties to
any arbitration proceeding in connection with this Contract, no Party or
arbitrator may disclose (a) the existence, content, or results of such
proceeding; or (b) any information or documents disclosed by any Party in
connection with such proceeding.
22.11 FEES AND EXPENSES All fees and expenses of any arbitration
proceedings in connection with this Contract 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.
ARTICLE 23
CONFIDENTIALITY
23.1 CONTRACT PROVISIONS
23.1.1 Each Party shall make reasonable efforts to assure that its
employees do not disclose the terms or conditions of this Contract, except
as may be required to perform this Contract, to acquire insurance or the
benefit thereof, in support of arbitration or legal proceedings relating
hereto, as required by their respective governments, or in the normal
course of reporting to its parent company.
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23.1.2 No publicity or information regarding this Contract will be
given or released without the prior written consent of the other Party.
Consent to release of information by either Party shall not be unreasonably
withheld.
23.2 PROPRIETARY DATA It is recognized that Customer and Contractor each will
have developed technical information relating to the mating and launching of the
Launch Vehicle and the Satellite which will be exchanged between the Parties.
To the extent that such data is considered "Proprietary Information" by either
Party, such disclosures shall be handled in accordance with this Article 23.
23.2.1 "Proprietary Information" (i) shall be that information,
data or material in written form which is conspicuously marked
"Proprietary," and which is delivered by Contractor or by Customer, as the
case may be, to the representative designated for receipt thereof by the
other Party, as set forth in Article 9.1 of this Contract and (ii) shall
include all copies in whole or in part made of such information, data or
material or derivative uses thereof. Oral disclosure, if identified as
"Proprietary Information" prior to disclosure, will be treated as
proprietary under this Article provided that the oral information is
reduced to writing and a copy marked as "Proprietary" is sent to the
recipient within thirty (30) days of such disclosure.
23.2.2 Each Party agrees not to use the other Party's Proprietary
Information for any purpose other than for the performance of this
Contract. Any other use or disclosure of such Proprietary Information
shall be made only upon prior written consent of the other Party.
23.2.3 Each Party agrees to restrict disclosures of the Proprietary
Information of the other Party to only those having a need to know in the
performance of this Contract and to have all such Proprietary Information
protected with reasonable care such as that care normally used to protect
its own Proprietary Information within its own organization. If such care
is used, the recipient shall not be liable for the unauthorized disclosure
of Proprietary Information.
23.2.4 The aforementioned restrictions on use and disclosure of
Proprietary Information will not apply:
23.2.4.1 If either Party can show that the Proprietary
Information received from the other is or has
become generally available through the public
domain without fault of such Party;
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23.2.4.2 If the Proprietary Information is in a written
record in one Party's files prior to its receipt
from the other Party and is not otherwise restricted
as to its use or disclosure;
23.2.4.3 If either Party at any time lawfully obtains the
Proprietary Information in writing from a Third Party
under circumstances permitting its disclosure;
23.2.4.4 If the Proprietary Information is disclosed with the
prior written consent of the other Party, provided
such disclosure complies in all respects with the terms
of the written consent;
23.2.4.5 When the Proprietary Information is disclosed more
than six (6) years after the date of receipt of the
information.
23.2.5 Upon termination or expiration of this Contract, the Parties,
within a reasonable period of time, will return all Proprietary
Information received from the other Party under the terms of this Contract
or certify that all the Proprietary Information has been destroyed.
23.2.6 It is understood that neither Party assumes any liability to
the other for damages arising from the other Parties use of or reliance
upon any Proprietary Information disclosed pursuant to this Article except
as provided elsewhere herein.
ARTICLE 24
PATENT AND DATA RIGHTS
Neither Party will acquire, as a result of the services to be provided under
this Contract, any rights to the inventions, patents, copyrights, or other
technical property or any rights to the proprietary data of the other Party or
the Related Third Parties of the other Party, except as set forth elsewhere in
this Contract.
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ARTICLE 25
AMENDMENT
Except as may be specifically provided elsewhere in this Contract, any
amendment, modification or change to this Contract, including but not limited
to launch requirements, changes in quantity or schedule adjustments, may only
be made in writing and upon mutual agreement of Customer and Contractor.
ARTICLE 26
GOVERNING LAW
This Contract shall be governed by and construed in accordance with the laws of
the State of Colorado, exclusive of that jurisdiction's choice of law rules.
The provisions of the United Nations Convention for the International Sale of
Goods shall not be applicable to this Contract.
ARTICLE 27
WAIVER OF BREACH
The failure of either Party, at any time, to require performance of the other
Party of any provision of this Contract shall not waive the requirement for such
performance at any time thereafter.
ARTICLE 28
ASSIGNMENT
This Contract shall not be transferred, assigned or delegated to any other
individual, firm, institution, organization or government agency by either Party
without the prior written consent of the other Party, except for assignments or
delegations made by either Party to its parent company, a subsidiary of either
Party or its parent company, or a division. Consent to assignment or delegation
by either Party shall not be unreasonably withheld. Any attempted assignment or
delegation, without such consent, shall be void and without effect. Any
permitted assignment or delegation shall not act to release a Party from its
obligations under this Contract unless the consent to assignment or delegation
from the other Party specifically provides for such release.
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ARTICLE 29
ORDER OF PRECEDENCE
In the event of any conflict among the various portions of this Contract, the
following order of precedence shall prevail:
Articles 1 through 32
Exhibit A - "Statement of Work"
All other Exhibits to this Contract.
ARTICLE 30
ENTIRE AGREEMENT
This Contract constitutes the entire agreement and understanding between the
Parties. No other promises or representations, either verbal or written, with
the exception of duly executed subsequent written modifications to the Contract
shall have any force or effect in regard to the contractual obligations of the
Parties herein.
ARTICLE 31
EFFECTIVE DATE OF CONTRACT
The effective date of this Contract is 5 April 1996.
ARTICLE 32
EXECUTION OF THE CONTRACT
IN WITNESS WHEREOF, the Parties hereto have executed this Contract as of the day
and year first above written:
For Customer: For Contractor:
EchoStar Space Lockheed ▇▇▇▇▇▇ Commercial Launch
Corporation Services, Inc.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇ ▇. WASH
----------------------------- -----------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. Wash
Title: Chairman and C.E.O Title: President
Date: 5 April 1996 Date: 5 April 1996
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