Launch Services Agreement
This Launch Services Agreement is entered into by and between
DBS Industries, Inc., a Delaware corporation with principal offices
located at:
000 Xxxxxxxxx XXX, XXX 000X, Xxxx Xxxxxx, XX 00000
XXX
- hereinafter referred to as Customer -
and
EUROCKOT Launch Services GmbH, a company organized under German Law with
principal offices located at:
Xxxxxxxxxxxxxxx 0 - 0
X - 00000 XXXXXX
Xxxxxxx
- hereinafter referred to as EUROCKOT -
TABLE OF CONTENTS
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Pages
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ARTICLE 1 DEFINITIONS 3
ARTICLE 2 SERVICES TO BE PROVIDED 6
ARTICLE 3 CUSTOMER'S RESPONSIBILITIES 7
ARTICLE 4 COORDINATION BETWEEN THE PARTIES 8
ARTICLE 5 LAUNCH SCHEDULE 9
ARTICLE 6 PRICE 10
ARTICLE 7 PAYMENT TERMS 11
ARTICLE 8 LAUNCH POSTPONEMENTS 13
ARTICLE 9 LAUNCH SERVICE PERFORMANCE FAILURE 15
ARTICLE 10 RELAUNCH SERVICES 16
ARTICLE 11 (RESERVED) 17
ARTICLE 12 ALLOCATION OF RISKS 18
ARTICLE 13 LIMITATION OF LIABILITY 21
ARTICLE 14 INSURANCE 22
ARTICLE 15 PERMITS AND AUTHORIZATIONS 23
ARTICLE 16 RIGHT OF OWNERSHIP AND CUSTODY 24
ARTICLE 17 RIGHTS TO INTELLECTUAL PROPERTY 25
ARTICLE 18 FORCE MAJEURE 26
ARTICLE 19 CONFIDENTIALITY 27
ARTICLE 20 TERMINATION 29
ARTICLE 21 APPLICABLE LAW 30
ARTICLE 22 ARBITRATION 31
ARTICLE 23 MISCELLANEOUS 32
ANNEX 1 LAUNCH TECHNICAL SPECIFICATIONS
ANNEX 2 LAUNCH SERVICES STATEMENT OF WORK
ANNEX 3 CUSTOMER'S RESPONSIBILITIES DOCUMENT
ANNEX 4 INTERFACE CONTROL DOCUMENT
ARTICLE 1
DEFINITIONS
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In this Agreement, capitalized terms used and not otherwise set forth
herein shall have the following meanings, such terms being equally
applicable to the singular and plural forms.
Ancillary Equipment shall mean all equipment, devices and software to be
provided by the Customer at the Launch Site in order to prepare the
Payload for the performance of Launch Services.
Associated Services shall mean the services other than Launch Services,
to be provided by the EUROCKOT as specified in Annex 2.
Confidential Data shall have the meaning as set forth in Article 19.1 of
this Agreement.
Customer's Responsibilities Document shall mean as set forth in Annex 3,
"Customer's Responsibilities Document," hereto and made
a part hereof.
Force Majeure Event shall have the meaning as set forth in Article 18.1
of this Agreement.
Intellectual Property shall mean any inventions, software, designs,
patents, trademarks, registered designs, copyrights, trade secrets and
other proprietary information of a Party.
Intentional Ignition shall mean the moment in time when the command is
sent to open the valves of the first stage fuel and oxidiser tanks.
Interface Control Document shall have the meaning as set forth in Annex
3, "Interface Control Document," hereto and made a part hereof.
L shall mean the first day of the most recently agreed Launch Period.
Launch or Launching shall mean the intentional ignition of the first
stage engines of the Launch Vehicle followed by Lift-off of the Launch
Vehicle.
Launch Attempt shall mean the commencement of the launch sequence
of the Launch Vehicle up to and including the intentional
ignition of any of the first stage engines, provided, however,
Lift-off does not occur.
Launch Day or D shall mean a calendar day (established as date for the
Launch pursuant to this Agreement) during which the Launch Window is
open.
Launch Failure shall have the meaning as set forth in Article 9.
Launch Period shall mean a period of four (4) consecutive calendar
months.
Launch Services shall mean those services to be performed by the
EUROCKOT as specified in Article 2 of this Agreement
Launch Services Statement of Work shall have the meaning as set forth in
Annex 1, "Launch Services Statement of Work", hereto and made a part
hereof.
Launch Site shall mean the physical location at Plesetzk, Russia, for
the Launch, including the associated installations and equipment used by
EUROCKOT in connection with the Launch Services and Associated Services.
Launch Slot shall mean a period of one calendar month within a Launch
Period with daily launch Window possibilities.
Launch Success shall be deemed to be accomplished if a Launch
Failure did not arise
Launch System shall mean the launch assembly complex consisting of the
Launch Vehicle; the Launch Pad, and the Payload Preparation Complex.
Launch Technical Specification shall have the meaning as set forth in
Annex 1 herto and made part hereof.
Launch Time shall mean the instant, within the Launch Window, that the
intentional ignition of the first stage engines is scheduled to take
place, definded in hours, minutes and seconds (GMT Universal Time). The
initial Launch Time occurs at the first second of the opening of the
Launch Window.
Launch Vehicle Mission or Launch Mission shall mean the mission assigned
to the Launch Vehicle as defined in Annex 1 to this Agreement.
Launch Vehicle shall mean the ROCKOT launch vehicle including the
payload dispenser system
Launch Window shall mean a time period during the Launch Day, within
which the Launch may take place.
Lift-off shall mean the intentional ignition and upward acceleration of
the first stage of the Launch vehicle.
Partial Failure shall have the meaning as set forth in Article 9.1.3 of
this Agreement.
Party shall mean Customer or EUROCKOT or both according to the context.
Payload shall mean all property, including the spacecraft, as described
in Annex 3, to be flown aboard the Launch Vehicle, that is provided by
the Customer, meeting the requirements set forth in Annex 4.
Postlaunch Services shall mean the reports and range services as
defined in Paragraphs ( ) of Annex 1 to this Agreement
that are to be provided to Customer by EUROCKOT after theLaunch.
Related Participants shall mean all persons, other than the Parties and
any Third Parties, in direct or indirect contractual privity with or
having a beneficial interest in either Party, acting directly or
indirectly to perform this Agreement, including without limitation, the
contractors, sub-contractors at any tier (and suppliers of any kind) and
the respective officers, directors and agents of each of the foregoing,
or any of them. For the purpose of Article 12, Allocation of Risks,
only, Related Participants shall include any person with any right,
title or interest in the Payload.
Third Party shall mean any person or legal entity other than the Parties
and the Related Participants.
ARTICLE 2
SERVICES TO BE PROVIDED
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2.1 EUROCKOT, in consideration for the payment to be made by the
Customer under this Agreement, and in accordance with the terms and
conditions of this Agreement, shall provide two Launch Services and the
Associated Services for the purpose of launching the Customer's Payloads
into orbit from the Launch Site, utilizing the Launch Vehicle in
accordance with the documents of para. 2.3.
2.2 The obligations of the EUROCKOT with respect to the provision of
Launch Services and Associated Services for the Launch shall be deemed
to be fulfilled upon Launch, except for the provision of post launch
data described in the Statement of Work (Annex 2) and for the provision
of Relaunch Services as specified in Article 10 of this Agreement.
2.3 All Annexes and documents referred to herein are hereby incorporated
into this Agreement and shall form an integral part hereof. The Articles
of this Agreement and all Annexes hereto shall be read so as to be
consistent to the extent practicable. In the event of any ambiguity,
conflict or inconsistency among or between the various parts of this
Agreement, such ambiguity, conflict or inconsistency shall be resolved
by giving precedence to this Agreement followed by the Annexes without
any presendence among the Annexes as set forth below:
A. Launch Services Agreement, Article 1 through 23
B. Annex 1, Launch Technical Specification
C. Annex 2, Launch Services Statement of Work
D. Annex 3, Customer's Responsibilities Document
E. Annex 4, Interface Control Document
F. Any documents incorporated into Annex 1 through 4 by
reference
ARTICLE 3
CUSTOMER'S RESPONSIBILITIES
---------------------------
The Customer shall, on a timely basis, perform its obligations under this
Agreement and as set forth in the Interface Control Document and the Customer's
Responsibilities Document including, without limitation, the timely delivery, at
its expense, of the Payload and the Ancillary Equipment to the Port of entry
into Russia (presently International airport Moscow) in order to meet the Launch
schedule set forth in Article 5 and the requirements for integration specified
in Interface Control Document (Annex 4).
ARTICLE 4
COORDINATION BETWEEN THE PARTIES
--------------------------------
4.1 The Customer and EUROCKOT shall each designate a project coordinator
immediately following the effective date of this Agreement.
4.2 The project coordinators shall supervise and coordinate the
performance of the Launch Services and Associated Services and the
technical commitments of the respective Parties under this Agreement.
4.3 The project coordinators shall have sufficient powers to be able to
settle any technical issues that may arise during the performance of
this Agreement as well as any daily administration issues.
4.4 Either Party may replace its project coordinator by prior written
notice to the other Party, signed by an authorized representative,
indicating the effective date of designation of the new project
coordinator.
4.5 The project coordinators shall not be authorized to direct work
contrary to the requirements of or to make modifications to this
Agreement. Modifications to this Agreement shall only be made in
accordance with Article 23.4 Amendments.
ARTICLE 5
LAUNCH SCHEDULE
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5.1. The first Launch of three Satellites shall take place in the
following Launch Period of four (4) months:
November 2000 to February 2001
5.2 The second Launch of three Satellites shall take place in the
following Launch Period of four (4) months:
March 2001 to June 2001.
5.3 No later than six (6) months prior to the first day of those Launch
Periods, a Launch Slot of one (1) month duration shall be determined
within the Launch Period by mutual agreement of the Parties.
5.4. The Launch Day within the Launch Slot shall be determined by mutual
agreement between the Parties, no later than four (4) months prior to
the first date of the launch period.
5.5 The Launch Window shall be determined by mutual agreement between
the Parties, no later than the Final Mission Analysis Review.
ARTICLE 6
PRICE
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6.1 The Customer shall pay EUROCKOT the price for the two Launch
Services and Associated Services to be provided under this Agreement as
follows:
6.2 The price set forth in Article 6.1 is a firm and fixed price for the
cost of the Launch Services and the Associated Services, including the
cost of third party liability insurance specified in Article 14, as any
Russian taxes and duties on the Launch Services as well as in connection
with the importation and launch of the Payload, and is not subject to
escalation of any kind, but does not include any amounts payable by the
Customer pursuant to Article 8, Launch Postponements, as well as any
additional cost arising from change requests of the Customer to the
Statement of Work, all of which amounts shall be in addition to the
price set forth in Article 6.1.
ARTICLE 7
PAYMENT TERMS
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7.1 Payment schedule
The Customer shall pay the price set forth in Article 6 in US
Dollars, in accordance with the following payment schedule:
% of Price % of Price % of Total
Payment date Launch 1 Launch 2 Price
------------ -------- ---------- ----------
Contract sign. 20 10 15
(3/99)
July 1, 1999 10 10 10
October 1, 10 10 10
1999
January 1, 20 10 15
2000
April 1, 2000 10 10 10
July 1, 2000 20 10 15
Nov. 2000 10 10 10
(Launch 1)
January 1, 20 10
2001
April 10 5
-
2001(Launch 2) 100
7.2 Terms and conditions of payment
7.2.1 Payments by Customer shall be made at the specific dates set forth
in this Agreement or within thirty (30) days of Customer's receipt of
the corresponding EUROCKOT invoice, whichever is later, except for the
first payment which shall be made at Agreement signature.
7.2.2 The last payment of 10 % upon Launch 1 as well as upon Launch 2
shall be subject to Launch Success, and in case of a Launch Failure
shall be paid out to EUROCKOT upon successful Relaunch. In case of
Launch Failure of Launch 1, each of the remaining milestone payments of
Launch 2 shall be deferred for a period of time equal to the duration of
the Launch Failure investigation, or up to flight autorisation,
whichever is later.
7.2.3 Payments shall be made to the account designated on the relevant
invoice by telegraphic bank transfer, free of charge for EUROCKOT, with
telex notice from the issuing bank to the receiving bank, clearly
stating the value date to be applied.
7.2.4 Customer's payments shall be in the amounts invoiced by EUROCKOT
and shall be made net, free and clear of any and all taxes and duties
that may be imposed.
7.2.5 The Customer hereby irrevocably waives any right to defer,
withhold or set-off by counterclaim or other legal or equitable claim,
any or any portion of an amount payable under this Agreement.
7.2.6 In the event the Customer fails to pay any amount payable
hereunder when due (a "Payment Default"), the Customer shall pay
EUROCKOT, in addition to the amount payable, interest on such overdue
amount for the period from the due date to the date of payment in full
of such amount at a rate equal to the highest Short Term Prime Rate as
announced by primary commercial banks in Frankfurt on the date payment
is due plus two (2) percent per annum, provided, however, that if such
Payment Default is due to any Force Majeure Event, no late payment
interest shall be due during such time as any Force Majeure Event
continues.
ARTICLE 8
LAUNCH POSTPONEMENTS
8.1 Each postponement, for whatever reason, of the Launch Period, Launch
Slot or the Launch Day requested by either Party shall be governed
solely by the terms and conditions set forth in this Article 8. The
Parties hereto expressly waive, renounce and exclude any and all rights
and remedies that may arise at law or in equity with respect to
postponements that are not stated in this Article 8 or elsewhere in this
Agreement.
8.2 Postponement requested by Customer
8.2.1 The Customer shall have the right, for any reason whatsoever, to
postpone the Launch Period, Launch Slot or Launch day of either Launch
without cost or penalty, except as provided for in Article 8.2.2 and
8.2.3 below.
The Customer shall give written notice to EUROCKOT of any desired
postponement as soon as possible together with a proposal for a new
Launch Period, Launch Slot or Launch Day, as the case may be. Within
fifteen (15) days of receipt of the written request for postponement,
EUROCKOT shall inform the Customer if the proposed Launch Period, Launch
Slot or Launch Day is acceptable or will propose a new Launch Period,
Launch Slot or Launch Day. The Customer shall have fifteen (15) days
following receipt of EUROCKOT's proposal to consent thereto in writing.
In the event that EUROCKOT does not agree with the Customer's proposal
or does not propose a new Launch Period, Launch Slot or Launch Day, the
Customer shall propose an alternative Launch Period, Launch Slot or
Launch Day. The procedure, as described above, shall be followed until
agreement is reached between the Customer and EUROCKOT.
8.2.2 In the event of a corresponding request by the Customer after
erection of the launch vehicle on the launch pad the Customer shall bear
all cost arising for deintegration of launch vehicle and Payload
(,,destack"), defueling, restack and refueling, but not more than
8.2.3 In the event that any postponement of a Launch by the Customer
under this Article 8 exceeds twelve (12) months (either consecutively or
in the aggregate), the price and terms for the Launch Services and the
Associated Services, including postponement fees, shall be subject to
renegotiation by the Parties.
8.2.4 Postponement fees payable by the Customer hereunder shall be paid
to EUROCKOT within 30 days of the request for a postponement.
8.2.5 The payment schedule as stated in Article 7 shall not be affected
by postponements requested by the Customer.
8.3 Postponement requested by EUROCKOT
8.3.1 EUROCKOT shall have the right to postpone the Launch Period,
Launch Slot or Launch Day for the following reasons without cost or
penalty.
8.3.1.1 If technical or logistical problems encountered by EUROCKOT or
its Related Participants prevent the Launch from taking place under
satisfactory conditions.
8.3.1.2 If priority launches to which EUROCKOT is contractually
committed require an adjustment of the Launch Schedule.
Those priority launches are:
- relaunches and replacement launches
- launches of scientific satellites with a mandatory
launch Period/Slot.
8.3.2 If EUROCKOT has to postpone a Launch Period or Launch day under
this Article 8.3, EUROCKOT shall use all reasonable efforts to
reschedule the launch as near as possible to the former Launch Period
or Launch Day. The procedure for the determination of a new Launch
Period or Launch Day shall be as set forth in Article 8.2.1.
8.3.3 In the event that any postponement of a Launch by EUROCKOT under
Article 8.3 exceeds 6 months (either consecutively or in the
aggregate), the Customer shall have the right to terminate the Launch
Services in accordance with Article 20.1 hereof.
8.3.5 Postponement fees payable by EUROCKOT hereunder shall be paid to
the Customer within 30 days of the request for a postponement.
8.3.6 The payment schedule as stated in Article 7 shall be amended in
accordance with postponements requested by EUROCKOT.
8.4 Notwithstanding any provision in this Article 8, no postponement
fee shall be payable by either party for a postponement caused by a
Force Majeure Event.
ARTICLE 9
LAUNCH SERVICE PERFORMANCE FAILURE
----------------------------------
9.1 Launch Failure:
The performance of the Launch Services hereunder shall be
considered to be a Total Failure, a Constructive Total Failure or a
Partial Failure in the event that loss of or damage to one, two or all
three satellites is caused solely and directly by Launch Vehicle
failure or Launch Vehicle- induced conditions more severe than those
specified in the Interface Control Document.
9.1.1 Total Failure:
The performance of the Launch Services will be deemed to be a total
failure if all three satellites is/are completely destroyed or
permanently lost at any time before physical separation from the Launch
Vehicle or if all three satellites cannot be physically separated from
the Launch Vehicle, resulting in the total loss of the satellite(s).
9.1.2 Constructive Total Failure:
The performance of the Launch Services will be deemed to be a
constructive total failure if:
9.1.2.1 the operational capacity or nominal lifetime of all three
satellites is reduced by more than fifty (50) percent as a direct
result of the performance or non-performance of the Launch Vehicle, as
determined from the Launch Vehicle flight data;
9.1.2.2 after physical separation from the Launch Vehicle, as a direct
result of the performance or non-performance of the Launch Vehicle, as
determined from the Launch Vehicle flight data, the attitude and
orbital conditions of all three satellites are such that any corrective
action required to place the Payload into its nominal operating orbit
would result in a reduction by more than fifty (50) percent of its
nominal lifetime or a reduction by more than fifty (50) percent of its
nominal operational capacity.
9.1.3 Partial Failure
The performance of the Launch Services will be deemed a Partial
Failure if only one or two satellites are totally lost or damaged in
accordance with 9.1.2.
9.2 Launch Failure Review
Customer shall be entitled to participate with a reasonable number
of observers in EUROCKOT'S Launch Failure Review.
ARTICLE 10
RELAUNCH SERVICES
-----------------
10.1 For each of the two Launches the Customer is hereby granted a
single free Relaunch Services in the event that the performance of the
Launch Services results in a Launch Failure pursuant Article 9.
10.2 The Launch Period for the Relaunch Services shall be scheduled to
commence no later than three (3) months after the conclusion of the
investigation by EUROCKOT's failure review board unless the Parties
agree to an earlier or later Launch Period, however, not later than 8
months after notification by both Parties that the Launch Services
resulted in a Launch Failure. Notwithstanding the foregoing sentence, in
no event shall EUROCKOT be required to schedule a Relaunch at any time
before launch facilities required for the Relaunch Services are
available or all corrective or safety actions with respect to the Launch
Vehicle have been completed to the satisfaction of EUROCKOT.
10.3 The Relaunch Services shall in no event include the replacement of
or replacement value of the Payload.
10.4 The Relaunch Services shall be governed by the terms and conditions
of this Agreement, provided that such Relaunch Services shall not
include any relaunch thereof in the event the performance of the
Relaunch Services results in a Launch Failure.
10.5 The payload for the Relaunch Services shall be in accordance with
the Interface Control Document applicable to the Payload. If the payload
for the Relaunch Services has different interface requirements or
otherwise differs from the Payload such that EUROCKOT shall be required
to modify the Launch Vehicle, then the Parties shall negotiate in good
faith any changes and additional payments to be made by the Customer for
such differences. If less than three satellites are to be relaunched,
EUROCKOT, in mutual agreement with the Customer, may accommodate
secondary payloads on such Relaunch Services.
10.6 In the event of two Partial Launch Failures resulting, however, in
the successful launch of four satellites, EUROCKOT shall be obliged to
only one free Relaunch.
ARTICLE 11
(RESERVED)
ARTICLE 12
ALLOCATION OF RISKS
-------------------
12.1 Inter-participant Waiver of Liability
12.1.1 Except as otherwise expressly provided in this Agreement, in view
of the particular nature of the services to be performed hereunder, the
Customer and EUROCKOT irrevocably agree to a no-fault, no-subrogation,
inter- participant waiver of liability pursuant to which each Party
agrees to assume the risk of and to absorb the financial and any other
consequences, whether direct or indirect, of any property damage or loss
it sustains or for any bodily injury to, death of, or property damage or
loss sustained by its own employees directly or indirectly arising out
of, relating to or resulting from any and all activities carried out
under this Agreement and each Party agrees that it will not make any
claim or institute any administrative, arbitral or judicial proceedings
against the other Party or against the Related Participants of the other
Party, for any such property damage or bodily injury, including death.
Such waiver of claims shall also extend to any indirect damages,
consequential damages or other loss of revenue or economic loss
resulting from any damage to the Payload whether before, during or after
Launch or from the failure of the Payload to reach its planned orbit
after Launch.
12.1.2 Each Party shall take all necessary and reasonable steps to
foreclose all claims for property damage or loss or bodily injury to,
death of or property damage or loss sustained by the employees of its
Related Participants directly or indirectly arising out of, relating to
or resulting from any and all activities carried out under this
Agreement. In furtherance of the foregoing, the Parties shall require
their Related Participants that may suffer any loss or damage in
connection with the performance of this Agreement to agree to be
responsible for and to make no claims against the other Party and its
Related Participants for any property damage or loss they sustain or for
any bodily injury to, death of, or property damage or loss sustained by
their own employees directly or indirectly arising out of, relating to
or resulting from any and all such activities carried out under this
Agreement.
12.1.3 The inter-participant waiver of liability described in Article
12.1.1 shall apply regardless of whether any damage
or injury results from the acts or omissions, whether negligent or
otherwise of either Party or the Related Participants of either Party,
except in the case of the willful or intentional misconduct or gross
negligence of either Party or the leading personnel of the Related
Participants of either Party.
12.1.4 In the event that any Related Participant of a Party makes any
claim or demand or institutes any proceeding (whether administrative,
arbitral, judicial or otherwise) against the other Party or any of the
other Party's Related Participants on account of any loss, damage or
bodily injury, including death, or for any consequences thereof, except
in the case of the other Party's or the leading personnel's of the other
Party's Related Participants willful or intentional misconduct or gross
negligence, the first Party shall indemnify, hold harmless, dispose of
such claims, demands or proceedings and defend the other Party and its
Related Participants, as the case may be, from and against such claim,
demand or proceeding, and shall pay all expenses, including attorney
fees, and satisfy all judgments that may be incurred by or rendered
against such indemnitee arising from such claim, demand or proceeding.
This indemnification obligation shall be in addition to indemnification
obligations otherwise established by this Agreement.
12.1.5 The inter-participant waiver provisions of this Article 12.1
shall inure to the benefit of, and be binding upon, the successors and
permitted assigns of each Party.
12.2 Infringement of Intellectual Property Rights
12.2.1 EUROCKOT shall defend, hold harmless and indemnify the Customer
and its Related Participants from and against any and all claims
resulting from any infringement, or claim of infringement, of the
Intellectual Property rights of a Third Party, that may arise from the
Customer's use of EUROCKOT's Launch Services and Associated Services.
12.2.2 The Customer shall defend, hold harmless and indemnify EUROCKOT
and its Related Participants from and against any and all claims
resulting from any infringement, or claim of infringement, of the
Intellectual Property rights of a Third Party, that may arise from the
design, manufacture or operation of the Payload or the Ancillary
Equipment or by EUROCKOT's compliance with specifications furnished by
the Customer with respect to the Launch Services or the Associated
Services.
12.3 Rights and Obligations - The right to indemnification provided
under this Article 12, shall be subject to the following conditions:
12.3.1 the Party seeking indemnification shall promptly advise the other
Party of the filing of any suit, or of any written or oral claim against
it alleging an infringement of 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;
12.3.2 the Party seeking indemnification shall not make any admission
nor shall it reach a compromise or settlement nor take any steps in a
dispute with any Third Party without prior written approval of the other
Party, which approval shall not be unreasonably withheld or delayed;
12.3.3 the Party required to hold the other harmless shall have the
right and the obligation to defend any claim or suit and/or settlement
thereof, when not contrary to the governing rules of procedure, shall
pay all reasonable litigation and administrative costs and expenses
incurred in connection with the defense of any such suit, including fees
and expenses of legal counsel, shall satisfy any arbitral awards or
judgments rendered by a court of competent jurisdiction in such suits,
and shall make all settlement payments; and
12.3.4 in the event that a Third Party claims against EUROCKOT and the
Customer for the same alleged infringement of patent rights or other
intellectual property rights pursuant to Article 12.2 hereof, EUROCKOT
and the Customer shall jointly undertake the defense and shall bear the
damages, costs and expenses in proportion according to their respective
share of liability. The proportion shared by each Party shall be
determined through good faith negotiation or final judgment of a court
of competent jurisdiction.
ARTICLE 13
LIMITATION OF LIABILITY
13.1 EUROCKOT 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 THE
PERFORMANCE OF ANY LAUNCH SERVICES OR ASSOCIATED SERVICES HEREUNDER.
13.2 WITHOUT LIMITING THE GENERALITY OF THE INTER- PARTICIPANT WAIVER OF
LIABILITY SET FORTH IN ARTICLE 12.1, 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 CONSEQUEN-TIAL DAMAGES, INCLUDING WITHOUT LIMITATION,
COSTS OF EFFECTING COVER, LOST PROFITS, LOST REVENUES OR COSTS OF
RECOVERING A PAYLOAD. IN NO EVENT SHALL EUROCKOT'S LIABILITY TO THE
CUSTOMER FOR ANY CLAIM ARISING OUT OF THE PERFORMANCE OF LAUNCH SERVICES
OR ASSOCIATED SERVICES INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR
TERMINATION PURSUANT TO ARTICLE 20.1.4, EXCEED THE PRICE OF THE LAUNCH
SERVICES AS SET FORTH IN ARTICLE 6.
ARTICLE 14
INSURANCE
---------
14.1 EUROCKOT shall procure and maintain, at no cost to the Customer, an
occurrence basis type policy of insurance against legal liability for
bodily injury, including death, and loss of or damage to property of
Third Parties that is sustained by either Party or the Related
Participants of either Party. Such insurance shall be in the amount of
US Dollars 100 Million minimum per Launch and in the aggregate, and
shall provide for the payment of claims arising in connection with the
Launch Services provided under this Agreement commencing with Lift-off
of the Launch Vehicle for a period of twelve (12) months after Lift-off.
14.2 The third party liability insurance referred to in Article 14.1
shall be on terms and conditions and with exclusions as are customary in
the insurance marketplace and shall name as named insured EUROCKOT and
as additional insureds the Customer and the respective Related
Participants of the Parties identified by each Party and the Government
of Russia and its agencies involved in Launch Services. 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.
14.3 If the Customer so requests, EUROCKOT shall reasonably assist the
Customer in connection with the purchase by the Customer of launch
insurance by furnishing to the Customer and prospective insurers
information regarding the Launch Vehicle and the Launch Services as may
be reasonably requested by the Customer and such insurers, subject to
confidentiality restrictions acceptable to EUROCKOT, and attendance at
underwriting presentations.
ARTICLE 15
PERMITS AND AUTHORIZATIONS
--------------------------
15.1 Pursuant to the Convention on Registration of Objects Launched into
Outer Space of 1974, EUROCKOT shall undertake to register the Launch
Vehicle with the Government of Russia as launching state. EUROCKOT shall
further be responsible for obtaining all necessary government licenses,
permits, approvals and other documentation from the Government of Russia
for the performance of the Launch Services and the Associated Services
as well for the importation of the payloads and the Ancilliary Equipment
into Russia.
15.2 Not later than 4 months prior to launch the Customer shall furnish
to EUROCKOT an appropriate document certifying the safety of the Payload
and the Ancilliary Equipment, so that EUROCKOT can obtain all necessary
approvals, permits and licenses from the Government of Russia.
15.3 The Customer shall be responsible for obtaining all necessary
government licenses, permits, approvals and other documentation
regarding the exchange of technical information and data necessary for
the performance by EUROCKOT of the Launch Services and regarding the
export of the Payload and the Ancillary Equipment from its country of
origin to thePort of Entry into Russia, including the availability of
Payload's ground stations. The Customer shall also be responsible for
obtaining all permits, authorizations and notices of non-opposition from
all national and international, public and private authorities having
jurisdiction over the construction, launch, operation and maintenance of
the Payload. The Customer shall further be responsible to ensure that
the Payload is properly registered by a state of registry in accordance
with the Convention on Registration of Objects Launched into Outer Space
of 1974.
15.4 The Parties acknowledge and agree that, in the event a Payload
inserted into a non-notified or non-coordinated orbital location
interferes with any other satellite already in orbit, operation of the
Payload may be ceased or stopped in accordance with the International
Frequency Register Board. The Customer shall be fully responsible for
providing all necessary notification and coordination of the orbital
location of the Payload.
15.5 Each Party shall be solely responsible for any expenses incurred in
obtaining the licenses, permits, approvals, authorizations, notices and
other documentation it is required to obtain under this Article 15,
provided that each
Party agrees to provide reasonable assistance to the other Party, at its
own expense, in obtaining such documentation.
15.6 For simplifying the administrative matters related to the
importation into Russia of the Payloads and the Ancilliary Equipment the
Customer shall do its best to obtain a corresponding diplomatic note
from its Government. Contractor agrees to assist and support the
Customer, free of charge, with such administrative matters, including
storage and possible repatriation of the Payloads as well the entry,
stay, and departure of the Customer.
ARTICLE 16
RIGHT OF OWNERSHIP AND CUSTODY
------------------------------
16.1 The Customer hereby acknowledges and agrees that at no time shall
it obtain title to or ownership of or any other legal or equitable right
or interest in any part of the Launch Vehicle, or in any other tangible
or intangible property or hardware of EUROCKOT or its Related
Participants including, without limitation, any Intellectual Property
rights used or furnished in providing Launch Services and Associated
Services under this Agreement. Such property shall be considered the
sole and exclusive property of EUROCKOT.
6.2 EUROCKOT hereby acknowledges and agrees that at no time shall it
obtain title to or any ownership of or any other legal or equitable
right or interest in any part of the Payload or the Ancillary Equipment,
or in any other tangible or intangible property or hardware of the
Customer or its Related Participants including, without limitation, any
Intellectual Property rights with respect to the Payload or the
Ancillary Equipment. Such property shall be considered to be the sole
and exclusive property of the Customer.
16.3 EUROCKOT shall have the right, in its sole and absolute discretion,
to intentionally destroy or cause any other person to intentionally
destroy, the Launch Vehicle and the Payload, without any liability to
the Customer, in the event that, following the ignition of any engines
of the Launch Vehicle, such action shall prove necessary or advisable to
limit or avoid any actual or perceived loss of or damage to property or
bodily injury, including death, to any person. In such event, the
Customer agrees not to assert and hereby irrevocably waives any claim
against EUROCKOT or any of EUROCKOT's Related Participants or against
any Russian government authority for loss of or damage to property or
bodily injury, including death, to any person or any related damages.
ARTICLE 17
RIGHTS TO INTELLECTUAL PROPERTY
-------------------------------
17.1 Each Party acknowledges and agrees that at no time shall it have
any ownership rights or any other rights or license to any Intellectual
Property of the other Party or of the other Party's Related Participants
including, without limitation, any Intellectual Property conceived and
first actually induced to practice in the course of the performance of
this Agreement by such Party. Notwithstanding the foregoing sentence,
EUROCKOT hereby grants to the Customer for the duration of its
performance under this Agreement the right to duplicate, disclose and
use interface and integration data necessary for performance of this
Agreement.
17.2 The Parties agree that, subject to Article 19, Confidentiality,
neither the execution nor the performance by either Party of this
Agreement shall grant any rights to or under any of either Party's or of
any of its Related Participant's respective Intellectual Property rights
to the other or to any of its Related Participants or any other person
unless such grant is expressly recited in a separate written document
duly executed by or on behalf of the granting Party.
ARTICLE 18
FORCE MAJEURE
-------------
18.1 Neither the Customer nor EUROCKOT shall be liable to the other in
the event of a failure or delay in the performance of their respective
obligations or commitments hereunder in the event the failure or delay
was unforeseeable and due to a cause beyond the Customer's or EUROCKOT's
control, as the case may be, and not due to that Party's fault or
negligence. Such causes include, without limitation, the following: acts
of God, acts of any governmental authority, wars (declared or
undeclared), riots or social uprisings, revolutions, fires, floods,
typhoons, earthquakes, freight embargoes, strikes, lock-outs or other
labor disturbances, adverse weather or declared launch safety conditions
that do not permit launching ("Force Majeure Events").
18.2 Upon the occurrence of a Force Majeure Event, the Party so affected
shall promptly inform the other Party in writing of the date, nature,
extent of the occurrence and, in the event of a delay, its expected
length. The Party so affected shall use its good faith best efforts and
all means reasonably available to it to overcome such occurrence. Both
Parties shall consult as soon as possible after the occurrence of a
Force Majeure Event to find an appropriate solution. Such efforts shall
include, without limitation, the expediting of materials and the
provision of additional labor notwithstanding that such efforts may
result in additional expense to the affected Party, provided such
additional expense is reasonable.
18.3 The schedule for the Launch Services affected by a Force Majeure
Event causing a delay may be postponed, if required, for the period of
the Force Majeure Event. In such a case, payment milestones shall be
deferred by the duration of the period of the Farce Majeure event.
18.4 In the event that any postponement of a Launch by EUROCKOT because
of Force Majeure exceeds 6 months (either consecutive or in the
aggregate) The Customer shall have the right to terminate the Launch
Services in accordance with Article 20.1 hereof.
ARTICLE 19
CONFIDENTIALITY
---------------
19.1 In the performance of its obligations hereunder, each Party and its
Related Participants may disclose information, data and physical
materials of a technical and financial nature considered by it to be
proprietary and confidential, including information originated by or
available only from the disclosing Party or its Related Participant or
by a Third Party with respect to which the disclosing party has limited
disclosure rights and that the disclosing party desires to protect
against disclosure to others ("Confidential Data"). Such Confidential
Data shall be marked prominently as confidential or proprietary before
its disclosure.
19.2 A Party receiving Confidential Data that has been identified as
such shall take all reasonable precautions to prevent its publication or
disclosure to Third Parties. Such Party shall only use the Confidential
Data solely in the performance of its obligations under this Agreement.
The Parties shall be deemed to have discharged their entire obligation
to maintain confidentiality of Confidential Data hereunder, if they
exercise the same degree of care to preserve and safeguard the other
Party's Confidential Data as they use to preserve and safeguard their
own. A Party may disclose Confidential Data it receives to its Related
Participants to the extent necessary for the performance of this
Agreement, provided such Related Participants first agree to be bound by
the nondisclosure and use restrictions contained herein.
19.3 Neither Party shall be liable for disclosure or use of any
Confidential Data furnished by the other Party:
o in the public domain, by publication or otherwise, at the time
of receipt or that comes into the public domain thereafter
through no act of the receiving Party in breach of this
Agreement; or
o known to the receiving Party or legally in the
receiving Party's possession before disclosure by the
disclosing Party; or
o disclosed with the prior written approval of the
disclosing Party; or
o independently developed by the receiving Party; or
o lawfully disclosed to the receiving Party by a Third
Party under conditions permitting such disclosure; or
o not properly marked as confidential or proprietary; or
o required, but only to the extent necessary, to be
disclosed pursuant to governmental or judicial order in which
event the Party concerned shall notify the other Party of any
such requirement before such disclosure and shall take all
reasonable actions to protect the confidentiality of such
Confidential Data; or
o required in connection with the financing of this
Agreement or of the Payload or in connection with the procurement
of insurance or the presentation of any insurance claim, provided
any recipient shall have first agreed to be bound by the
nondisclosure and use restrictions contained herein, provided the
disclosing Party has been informed of such request of disclosure.
19.4 Upon termination or completion of this Agreement, and upon request,
each Party agrees to return all Confidential Data (including all copies
thereof) received from the other Party or provide written certification
that all such Confidential Data has been destroyed, except that each
Party may retain one legal file copy thereof. The confidentiality
provisions of this Article 19 shall survive three (3) years after the
termination or completion of this Agreement.
19.5 If the Confidential Data disclosed is verbal, such verbal
Confidential Data shall be identified as confidential and proprietary
before disclosure and shall be reduced to writing promptly, but in no
event later than twenty (20) days, properly marked as confidential or
proprietary and delivered to the receiving Party in accordance with this
Article 19.
19.6 Title to all Confidential Data and any other information, data or
physical materials owned by one Party or its Related Participants and
delivered to the other Party or its Related Participants pursuant to
this Agreement shall remain exclusively with such person.
19.7 The parties agree that this launch Services Agreement shall be kept
strictly confidential. Furthermore, each Party shall
obtain the written approval of the other Party concerning the content
and timing of news releases, articles, brochures, advertisements,
prepared speeches and other information releases to be made by the Party
or any of its Related Participants concerning this Agreement. Such
approval shall not be unreasonably withheld.
ARTICLE 20
TERMINATION
-----------
20.1 This Agreement and the performance of work hereunder may be
terminated for cause by either Party upon the occurrence of any one of
the following events:
20.1.1 the other Party files a voluntary petition in bankruptcy, makes
a general assignment, arrangement or composition with or for the
benefit of its creditors, suffers or permits the appointment of a
receiver for its business assets, becomes subject to involuntary
proceedings under any bankruptcy or insolvency law (which proceedings
remain pending for more than thirty (30) days), or is wound up or
liquidated;
20.1.2 the other Party breaches any material covenant in this
Agreement, which breach remains uncured for a period of time equal to
the earlier to occur of: (a) thirty (30) days following receipt of
written notice of such breach from the non-breaching Party or, (b) five
(5) days following receipt of written notice of such breach from the
non-breaching Party if such breach occurs within thirty (30) days
before Launch, provided that, EUROCKOT shall not be required to perform
the Launch if the Customer has not cured the breach of any material
covenant before the Launch and provided further that, if such breach is
not curable using reasonable efforts within the time periods specified
in (a) and (b) of this Article 20.1.2 and the Launch is not scheduled
to occur before such time, such longer period, not exceeding ninety
(90) days, provided the breach can be cured within such longer period
and the breaching Party has commenced and is diligently proceeding with
the cure; or
20.1.3 the postponements of the Launch Services by EUROCKOT in
accordance with Article 8.3 exceed the period provided in Article
8.3.3.
20.1.4 the postponements of the Launch Services by EUROCKOT because of
Force Majeure exceeds the period of 6 months.
20.1.5 the first Launch as well as the Relaunch have been proven to be
both a Total Launch Failure.
20.2 If the Customer terminates this Agreement pursuant to Article
20.1, it shall be entitled to be reimbursed any amounts previously paid
to EUROCKOT hereunder. If EUROCKOT
terminates this Agreement pursuant to Article 20.1, it shall be
entitled to retain all payments made by the Customer to EUROCKOT
hereunder.
20.3 The Customer may terminate this Agreement for its own convenience,
at any time before Launch, in which case EUROCKOT shall be entitled to
retain all payments made by the Customer to EUROCKOT hereunder.
ARTICLE 21
APPLICABLE LAW
--------------
The relationship between the Parties as to the subject of this Agreement shall
be governed by this Agreement. To the extent the Parties have failed to address
any question arising herunder, or in the event of the need for any
interpretation of any term of this AgreementSwiss law shall be applied, unless
it is contrary to the explicit terms or the underlying common intentions of the
Parties to this Agreement.
ARTICLE 22
ARBITRATION
-----------
22.1 All disputes, controversies or claims between the Parties hereto,
arising under, out of, or in any way relating to this Agreement
including without limitation, the execution, delivery, validity,
enforceability, performance, breach, discharge, interpretation or
construction of this Agreement, that are not settled within thirty (30)
days (or such longer period as may be mutually agreed upon) from the
date that either Party notifies the other in writing that such dispute
or disagreement exists shall be finally settled under the existing rules
of Conciliation and Arbitration of the International Chamber of Commerce
by three arbitrators appointed and acting in accordance with said rules
and this Article, whose award shall be the sole and exclusive remedy
regarding any and all claims and counterclaims.
22.2 Each party may select one arbitrator, and the two selected
arbitrators shall choose a third arbitrator. If either Party fails to
select an arbitrator within ten (10) days after the arbitration is
sought, or the two arbitrators fail to select a third arbitrator within
ten (10) days after they both are appointed, International Chamber of
Commerce shall make the selection.
22.3 The third arbitrator to be appointed pursuant to this Article shall
have no interest in this Agreement or either of the Parties, and need
not be a resident of country of the Parties or among those individuals
on the list of any commercial arbitration association.
22.4 The cost of any arbitration conducted pursuant to this Article,
including the costs of the International Chamber of Commerce, shall be
borne equally by the Parties, provided, however, that each Party shall
pay its own attorney's fees.
22.5 During the period in which resolution of the dispute is pending,
EUROCKOT may, but shall not be required to, continue to perform its
obligations under this Agreement, unless otherwise instructed by the
Customer in writing.
22.6 The arbitral resolution shall be final and binding upon the Parties
and neither Party shall seek recourse to a court of law or to other
authorities to appeal or request revision of the award. Judgment upon
the award returned by the arbitrators may be entered and enforced in any
court having jurisdiction over the Parties.
22.7 The arbitration committee shall apply the substantive laws of
Switzerland and shall take into account usages, customs and practices in
the commercial launch transportation industry.
22.8 The arbitration proceeding shall take place inLausanne,
Switzerland, and shall be conducted in the English language.
22.9 The Parties agree that the United Nations Convention for the
International Sales of Goods shall not be applicable to this Agreement.
ARTICLE 23
MISCELLANEOUS
-------------
23.1 Notices and Language
23.1.1 All notices and communications between the Parties given under
this Agreement shall be in writing and shall be delivered in person or
sent by reliable international air courier, registered mail, postage
prepaid or by telefax to the other Party at the address listed below or
to such other address as shall be given in writing by either Party to
the other in accordance with this paragraph 23.1.1:
Notice to the Customer:
DBS Industries, Inc.
000 Xxxxxxxxx XXX, XXX 000X
Xxxx Xxxxxx, XX 00000 XXX
Telephone: x0.000.000.0000
Telefax: x0.000.000.0000
Notice to EUROCKOT:
EUROCKOT Launch Services XxxX
Xxxxxxxxxxx. 0-0
X - 00000 Xxxxxx
Xxxxxxx
Telephone: x00 000 000 0000
Telefax: x00 000 000 0000
23.1.2 Documentation, notices, reports, correspondence and other
communications furnished by one Party to the other under this Agreement
shall be in the English language.
23.2. Headings
The headings and sub-headings used in this Agreement are provided
solely for convenience of reference. They shall not prevail over the
content of the Articles of this Agreement.
23.3 Waiver of Breach
The failure of a Party at any time to require performance by the
other Party of any provision of this Agreement shall in no way affect
its right to require such performance at any time thereafter. The waiver
by a Party of a breach of any provision of this Agreement shall not
constitute a waiver of
any succeeding breach of the same or any other provision, nor shall it
constitute a waiver of the provision itself.
23.4 Amendments
This Agreement may be amended only in writing, signed by duly
authorized representatives of both Parties.
23.5 AssignmentError! Bookmark not defined.
This Agreement shall not be transferred or assigned by either
Party without the prior written consent of the other Party. EUROCKOT
herewith gives its consent to a potential assignment by the Customer to
a Prime Contractor appointed by the Customer. This Agreement shall be
binding on and inure to the benefit of any successor and permitted
assignee.
23.6. Entire Agreement
This Agreement, including all its Exhibits, constitutes the
entire understanding and agreement between the Parties and supersedes
all prior or contemporaneous correspondence, representations, proposals,
negotiations, understandings or agreements of the Parties, whether oral
or written in connection with the subject matter hereof. The Parties
hereby acknowledge that there are no collateral agreements between them
with respect to the subject matter hereof.
23.7 This Agreement shall become effective upon signature by duly
authorized representatives of both Parties.
Executed in two (2) originals
.............................. , .............. 1999
DBS Industries, Inc. EUROCKOT Launch
Services GmbH
