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EXHIBIT 10.29
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83
AND 230.406 * INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST THAT IS FILED SEPARATELY WITH THE COMMISSION
TURNKEY AGREEMENT FOR THE SUPPLY INSTALLATION AND
COMMISSIONING OF
THE HCA TELECOMMUNICATIONS NETWORK
DATE 9 August 1996
PARTIES
1: XXXXXXXXX CORPORATE ACCESS (HK) LIMITED of Rm. 1610, 16/F, One
Harbourfront, 00 Xxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx ("the Purchaser",
which expression shall include its successors and assigns); and
2: ViaSat, Inc. of 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000, XXX
("the Contractor").
PREAMBLE
The Purchaser has requested the Contractor, and the Contractor has agreed, to
provide the Network on a turnkey basis, including the design, development,
manufacture, installation and commissioning of the Equipment, as described in
the Scope of Works and the Technical Specifications, and on the terms set out
in the Contract.
1. Definitions & Interpretation
(a) In the Contract, words and expressions used as defined terms shall
have the meanings assigned to them in the Conditions of Contract.
(b) A reference in the Contract to a document listed under Clause 2
hereof shall be a reference to the document contained in the
corresponding Annex.
(c) Headings are for convenience only and do not affect interpretation.
The rules of interpretation set out in the Conditions of Contract
apply throughout the Contract unless the context requires otherwise.
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2. Contract Documents
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The Contract shall consist of this Agreement and the following Annexes:
Annex 1 Conditions of Contract
Annex 2 Product and Price Schedule
Annex 3 Delivery and Payment Schedule
Annex 4 Scope of Works
Annex 5 Technical Specifications
Annex 7 Test Plan (including Test Procedures)
Annex 8 Contractor Quality Management System
Annex 9 Further Purchase Product and Price Schedule
Annex 10 Further Purchase Delivery and Payment Schedule
Annex 11 Form of Performance Bond
Annex 12 Form of Letter of Credit
Annex 13 List of terms for letter of credit for Further Purchases
Annex 14 List of Replacement Parts
3. Hierarchy of Documents
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In case of inconsistencies between the terms of any document forming
part of the Contract the inconsistency shall be resolved in the
following order or priority.
(a) First, this Agreement.
(b) Second, each of the Annexes in the order they are attached to this
Agreement.
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4. Proper Law
This Agreement shall be governed by English law. The parties submit to
the non-exclusive jurisdiction of courts exercising jurisdiction there.
Signed by Signed by
/s/ /s/
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for and on behalf of for and on behalf of
XXXXXXXXX CORPORATE ACCESS VIASAT, INC.
(HK) LIMITED
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Annex 1
CONDITIONS OF CONTRACT
for
PROCUREMENT, INSTALLATION AND COMMISSIONING
of
THE HCA TELECOMMUNICATIONS NETWORK
INDEX
Condition Page No.
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1. Definitions 1
2. Scope of Contract 6
3. Contract Price 6
4. Design Reviews 6
5. Factory Acceptance 7
6. System Acceptance with respect to Phase 1 and Phase 2 7
7. System Acceptance with respect to Phase 3 9
8. Delay in Tests 9
9. Contractor's Warranties and Undertakings 9
10. Local Facilities and Services/Compliance with
Local Laws/Licences, Approvals and Xxxxxxx 00
00. Terms of Payment 17
12. Customs Duty and Sales Tax 19
13. Performance Bond 20
14. Intellectual Property Rights and Royalties 21
15. Trademarks 26
16. Further Purchases 27
17. Contract Amendments 29
18. Liability 30
19. Liquidated Damages for Delay prior to completion
of Phase 3 32
20. Title, Risk and Insurance 34
21. Purchaser's Participation 36
22. Termination of Contract by the Contractor 37
23. Termination of the Contract by the Purchaser 38
24. Rights and Obligations of the Parties in the event
of Xxxxxxxxxxx 00
00. Letter of Credit 43
26. Assignment and Sub-contracting 44
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Annex 1
Condition Page No.
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27. Confidentiality 44
28. Notice 45
29. Applicable Law 46
30. Arbitration 46
31. English Language 47
32. Miscellaneous 47
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CONDITIONS OF CONTRACT
for
PROCUREMENT, INSTALLATION AND COMMISSIONING
of
THE HCA TELECOMMUNICATIONS INTERNATIONAL
NETWORKS
1. DEFINITIONS
1.1 Where the context permits, the following expressions shall have the
following meanings:
"Agreement": the agreement between the Purchaser and the Contractor,
to which these Conditions are annexed;
"Annexes": the annexes to the Agreement specified in Clause 2 of the
Agreement;
"Business Day": a day on which banks are open for general banking
business in Hong Kong;
"Component": any distinct item or part of any Equipment;
"Condition": a provision in these Conditions of Contract;
"Contract": the agreement between the Purchaser and the Contractor
incorporating the Agreement and the Annexes as amended by any
Contract Amendment;
"Contract Amendment": a document by which changes to any part of the
Contract are made pursuant to Condition 17;
"Contract Price": the price payable by the Purchaser to the Contractor
under the Contract for the full and proper performance and execution
by the Contractor of the Works other than Works relating to Further
Purchases and New Products.
"Contractor Documentation": the Documentation required by the Scope
of Works to be provided by the Contractor to the Purchaser and such
other Documentation to be provided by the Contractor as may be agreed
by the parties in writing;
"Date of Contract": the last date of signature of the Agreement by both
parties;
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"Delivery and Payment Schedules": Annex 3 and Annex 10 (but in the
latter case only to the extent that the Purchaser exercises the right of
Further Purchase);
"Design Review": the process by which the Purchaser reviews and approves
the Designs required by the Contract to be approved by the Purchaser,
such reviews to be conducted in accordance with Condition 4 and the
Scope of Works;
"Design Review Certificate": a certificate given by the Purchaser to the
Contractor in accordance with Condition 4;
"Design Review Meetings": meetings held for the purpose of approving
Designs, agreeing on Tests and Contract Amendments and other matters as
further described in the Scope of Works;
"Designs": the design of the intended facilities, functions and
capabilities of the Network as set forth in the Technical
Specifications;
"Documentation": plans, manuals, charts, designs, diagrams, drawings,
specification, information, documents and data whether in written,
computer storage or other computer generated form;
"Equipment":
(a) hardware to be supplied by the Contractor in accordance with
Annex 2 (and, to the extent that the Purchaser exercises its
right of Further Purchase from time to time, any hardware
comprised within Further Purchase Products to be supplied by the
Contractor); and
(b) any Software forming a part of, or to be used on any such
hardware (and includes without limitation, firmware);
"Factory Acceptance Test Certificate": the certificate in respect of the
satisfactory completion of the Factory Acceptance given by the Purchaser
to the Contractor in accordance with Condition 4;
"Factory Acceptance Tests": the factory tests required to be conducted
on each Phase as set out or to be set out in the Test Plan, Test
Procedures and Scope of Works;
"Force Majeure": any circumstances which (despite prudent management and
operation) are beyond the control of the party affected and which
prevents that party from fulfilling its obligations under the Contract
in a timely manner, including any act of God, fire, flood, war,
sabotage, government or non government embargo causing export and import
delay or prohibiting export and import, strikes and
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labour disputes affecting the State of California in the United States
generally but specifically excluding failures or delays of either party
arising out of (i) any failure or delay on the part of any supplier or
subcontractor engaged by such party which itself is not caused by Force
Majeure, (ii) shortages of fuel, supplies or services which itself is
not caused by Force Majeure (iii) for the avoidance of doubt, strikes
and labour disputes which only affects the Contractor;
"Further Purchase": the option granted to the Purchaser to acquire all
or part of the Further Purchase Products in accordance with Condition
16;
"Further Purchase Products": all or part of the Equipment set out in
Annex 9 in respect of which the Purchaser may exercise the right of
Further Purchase;
"Intellectual Property Rights": patents, trademarks, service marks,
trade names, registered designs, designs, copyrights and other forms of
intellectual or industrial property (in each case in any part of the
world and whether or not registered or registrable and for the full
period thereof and all extensions and renewals thereof and applications
for registration of or otherwise in connection with the foregoing),
know-how, inventions, formulae, confidential or secret processes, trade
secrets and confidential information, and any other protected rights and
assets, and any licences and permissions in connection therewith;
"Letter of Credit": the letter of credit securing the payment of the
Contract Price by the Purchaser as specified in Condition 25, in the
form set out in Annex 12 or such other form as may be approved by the
Contractor;
"Milestones": such approval not to be unreasonably withheld the
achievement of certain performance targets or the completion of certain
tasks by the relevant Milestone Date as set out in the Delivery and
Payment Schedule;
"Milestone Date": in respect of each Milestone, the date specified in
the Delivery & Payment Schedule as the date by which certain tasks must
be completed or certain performance targets achieved or such other date
as provided for in the Contract including but not limited to the date
following from extension(s) granted under Condition 19.1. For the
avoidance of doubt, for the purpose of liquidated damages and
termination for delay, a milestone shall be deemed to have been
completed when the required tasks are completed or when required
performance targets are achieved notwithstanding that the Purchaser may
not have issued a certificate signifying completion.
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"Milestone Payment" the payment due upon achievement of a Milestone,
subject to the terms of the Contract in accordance with Annex 3 or Annex
10;
"Network": the telecommunication network the Components of which are
listed in Annex 2 (and, to the extent that the Purchaser exercises the
right of Further Purchase, any Components comprised within Further
Purchase Products) and described in the Scope of Works and Technical
Specifications;
"Network Terminal": such terminal as defined in the Scope of Works;
"Performance Bond": a bond securing the performance by the Contractor
of the Contract as specified in Condition 13, in the form set out in
Annex 11 or such other form as may be approved by the Purchaser;
"Performance Periods": such periods as specified in the Scope of Works;
"Price Schedules": means Annex 2 and Annex 9 (but in the latter case
only to the extent that the Purchaser exercises the right of Further
Purchase);
"PSTN": any public switched telephone network to be connected to the
Network;
"Ready for Service": with respect to the relevant Equipment means its
being properly installed and ready for commercial use;
"Xxxxx 0, Xxxxx 0 and Phase 3": all deliverables listed in Annex 2 and
respectively referred to as such in the Technical Specifications and the
Scope of Works and "Phase" means any of them;
"Replacement Part": any equipment supplied to the Purchaser by the
Contractor in the course of Contractor complying with its obligations to
repair, correct or replace any Equipment under Condition 9 and any such
equipment referred to in the Scope of Works as "spares" or "parts";
"Services": all services to be provided by the Contractor to the
Purchaser under the Contract;
"Site": the location at which a part of the Network is or is to be
installed;
"Software": an item of Equipment comprising of computer programming (not
including Source Code), computer software and
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related data, to be provided or provided by the Contractor under the Contract
in whatever form whether as floppy or hard disks, cartridges, magnetic tapes,
semiconductor chips or otherwise) or however designated (whether as firmware,
microcode or otherwise) and includes all changes, additions, revisions,
replacements, manuals and documentation which may be provided, including but
not limited to Starwire NCS owned by the Contractor;
"Source Code": the source codes for all Software to be provided to the
Purchaser under the Contract;
"Sub-Contractor": any sub-contractors or agents contracted by the Contractor to
carry out any of the Works any part of the sub-assembly of the Equipment,
notified by the Contractor in accordance with the Scope of Works (for
avoidance of doubt, excluding any manufacturers of component parts);
"Subscriber": any end user of a Network Terminal;
"System Acceptance Certificates": the certificates in respect of the compliance
and performance of each Phase to be given by the Purchaser to the Contractor in
accordance with Conditions 6 and 7;
"System Acceptance Date": the date on which the Purchaser grants the System
Acceptance Certificate with respect to each Phase to the Contractor;
"System Acceptance Tests": the tests required by the Contract to be conducted
to demonstrate that each Phase is Ready for Service as set out in the Test
Plan;
"Term of the Contract": means the period commencing on the Date of Contract and
ending on the date which is ten (10) years after the date on which the System
Acceptance Test Certificate is granted in respect of Phase 3;
"Test Procedures": means the detailed description of the testing techniques,
methods, instrumentation, test configuration, test results to be achieved and
the test results record format pursuant to the requirements expressed in the
Test Plan and to be agreed by the parties in accordance with the Scope of
Works;
"Tests": the Factory Acceptance Tests, System Acceptance Tests, and any other
tests required under the Contract;
"Warranties": means the warranties of the Contractor under Condition 9;
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"Works": all work which the Contractor is or may be required to execute,
provide, deliver or procure under the Contract in order to deliver the
Equipment, and provide the Services.
1.2 A reference in the Contract to an Act of Parliament or to any
regulation, ordinance, code or other statutory instrument or to any
section or provision thereof shall be read as if the words "or any
other statutory provision having the like or similar effect or dealing
with the like or similar subject matter" were added to such reference,
and such references shall include any statute or statutory provision
which amends or replaces, or has amended or replaced it, and shall
include any sub-ordinate legislation made under the relevant statute.
1.3 References in the Contract to writing shall include typewriting,
printing, lithogaphy, photography, telefax, facsimile and telex
messages and any mode of reproducing words in a legible and
non-transitory form.
1.4 In the Contract, words importing the singular include the plural and
vice versa, words importing a gender include every gender and
references to persons include bodies corporate or unincorporate.
1.5 Headings in these conditions are for convenience only and shall not
affect the construction of the Contract.
2. SCOPE OF CONTRACT
2.1 The Contractor shall provide the Network and deliver the Services in
accordance with the Contract on a turnkey basis. The Contractor
assumes complete responsibility for the design, manufacture, delivery,
installation and commissioning of the Equipment, identified in Annex
2 and the Scope of Works as equipment to be installed by the Contractor.
The Contractor assumes complete responsibility for the manufacture
and delivery to the designated carrier for all other Equipment.
3. CONTRACT PRICE
The Contract Price is specified in Annex 2. Subject to adjustments
expressly provided for in the Contract, the Contract Price shall be
payable in US dollars in the instalments specified in the relevant
Delivery and Payment Schedules.
4. DESIGN REVIEWS
4.1 Design Review Certificate
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The Purchaser shall issue a Design Review Certificate only when the
Designs and Contractor Documentation which are the subject of the
relevant Design Reviews are complete and comply fully with the
Scope of Works, the Implementation Plan, the Test Plan and the
Technical Specifications.
A Design Review shall be deemed to have been satisfactorily completed
if the Purchaser does not reject the relevant designs and Contractor
Documentation with a reasonably detailed explanation in writing within 5
Business Days after receipt notice of completion from the Contractor.
4.2 Non-Compliances
If the Designs indicate that there are non-compliances or omissions
from the relevant parts of the Scope of Works, Test Plan or Technical
Specifications, the Contractor shall remedy to the reasonable
satisfaction of the Purchaser any such non-compliances or omissions
within fourteen (14) days after receipt by Contractor of written
notice of deficiencies from the Purchaser unless otherwise agreed by
the Purchaser. Upon such remedy, the Purchaser shall issue the Design
Review Certificate.
5. FACTORY ACCEPTANCE
The Factory Acceptance Tests shall be deemed to have been
satisfactorily completed if the Purchaser does not reject the Factory
Acceptance Tests with a reasonably detailed explanation in writing
within 5 Business Days (in respect of Phase 1) and 10 Business Days
(in respect of Phase 2 and Phase 3) after receipt of test reports from
the Contractor.
The Purchaser shall issue a Factory Acceptance Certificate with respect
to each Phase only when:
(a) the relevant Phase has passed the requisite Factory Acceptance
Tests; and
(b) the deficiencies or omissions listed on the list attached to the
Design Review Certificate (if any) have been corrected.
6. SYSTEM ACCEPTANCE WITH RESPECT TO PHASE 1 AND PHASE 2
6.1 Certificates
Except as provided herein, the Purchaser shall issue a System
Acceptance Certificate with respect to each of Phase 1 and Phase 2
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only when the relevant System Acceptance Tests and the relevant
Performance Period are successfully completed and all defects or
deficiencies (if any) listed in the attachment to the relevant Factory
Acceptance Certificate have been corrected.
If the System Acceptance Tests or the Performance Period demonstrate
that there are minor non-compliances, defects or deficiencies in any of
the Equipment but that the Equipment is otherwise Ready for Service and:
(a) such outstanding minor non-compliances or defects or
deficiencies will not affect operational service or performance
of the Equipment in any material way; and
(b) correction of the defects or deficiencies will not require down
time to the Network outside the Purchaser's normal down time
periods;
then the Purchaser shall instead of rejecting the Equipment, grant the
relevant System Acceptance Certificate. A list of the non-compliances,
defects or deficiencies which are outstanding shall be attached by the
Purchaser to the System Acceptance Certificate. The Contractor shall use
its best efforts to minimize disruption to any commercial use of the
Equipment.
6.2 Serious Defects or Deficiencies
If the System Acceptance Tests are not successfully completed due to a
serious defect or deficiency in Phase 1 or Phase 2 (as the case may be)
the Purchaser shall not be required to grant the relevant System
Acceptance Certificate. The Contractor shall investigate the reasons for
such failure and may run or re-run the applicable Tests for such
purpose. The Contractor shall discuss and agree with the Purchaser the
nature of such defects or deficiencies or non-compliances and shall
agree the steps required to be taken to rectify such defects or
deficiencies or non-compliances. The Contractor shall take such steps
without cost to the Purchaser. The Contractor shall then re-submit the
said Equipment to the relevant Tests, giving to the Purchaser at least
three days notice of such further Tests. If any of the Equipment still
does not so comply, the Contractor shall repeat and continue to repeat
the steps set out in this Condition 6.2 until the relevant Equipment
passes the relevant Test, Ready for Services and completes the
Performance Period.
6.3 The relevant System Acceptance Tests shall be deemed to have been
satisfactorily completed if the Purchaser does not reject in writing the
relevant System Acceptance Test and or correction of deficiencies within
5 Business Days (in respect of Phase 1) and 10 Business Days
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ANNEX 1
(in respect of Phase 2 and Phase 3) after the receipt of test reports
from the Contractor or completion of corrections.
7. SYSTEM ACCEPTANCE WITH RESPECT TO PHASE 3
7.1 Requirements
The Purchaser shall issue System Acceptance Certificate with respect
to Phase 3 only when:
(a) Phase 3 System Acceptance Tests has been completed; and
(b) all defects or deficiencies identified pursuant to Condition 6
have been corrected.
The Purchaser may require the Contractor to conduct the Tests in its
presence.
7.2 The System Acceptance Tests shall be deemed to have been satisfactorily
completed if the Purchaser does not reject the relevant System
Acceptance Tests with a reasonably detailed explanation in writing
within 10 Business Days after receipt of the relevant test reports from
the Contractor.
8. DELAY IN TESTS
If the Purchaser's representative attends a Test at the time agreed for
that Test and the Test is delayed through reasons within the
Contractor's control or the control of any Sub-Contractor or should any
Designs not pass the relevant Test, then the additional costs for
travel, lodging and meals which are reasonably incurred by the Purchaser
by reason of the delay or of any further visits required to attend
deferred or repeated inspections, measurements or tests shall be met by
the Contractor, and may be deducted by the Purchaser from any money that
may become due to the Contractor under the Contract.
9. CONTRACTOR'S WARRANTIES AND UNDERTAKINGS
9.1 Definitions. In this Condition the following definitions apply.
"Design Defect" means a failure of the Equipment or a Component due to a
defect in design (other than a Network Loading Defect) to meet any of
the requirements of the Technical Specifications.
"Equipment Defect": means a failure of the Equipment or a Component
other than a Design Defect or a Network Loading Defect, whether caused
by a defect in material, workmanship or a random
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ANNEX 1
component failure, which results in a failure to meet any of the
requirements of the Technical Specifications.
"Network Loading Defect": means a failure of the Equipment or a
Component due to defect in design, to meet any of the requirements in
respect of the loading capacity of the Network set out in the Technical
Specifications.
"Warranty Period" means:
a) in respect of Equipment Defect, the period commencing on the
later of the System Acceptance Date for Phase 3 and the shipment
date of the relevant Equipment and ending on the date two years
thereafter;
b) in respect of Design Defects, the period commencing on the
System Acceptance Date for Phase 3 and ending on the day 2 years
thereafter;
c) in respect of Network Loading Defects, the period commencing on
the System Acceptance Date for Phase 3 and ending on the last
day of the Term of the Contract.
9.2 Warranties
9.2.1 Equipment Defect Warranty
The Contractor warrants that the Equipment shall be free from Equipment
Defects during the Warranty Period.
9.2.2 Equipment Defect Rectification Service
During the Warranty Period, and for Equipment Defects notified before
the expiry of the Warranty Period, the Contractor shall repair or
replace the defective Component or Equipment according to the terms of
this Condition 9.
9.2.3 Design Defect Warranty
The Contractor warrants that the Equipment shall be free from Design
Defects for the Warranty Period.
9.2.4 Design Defect Rectification Service
During the Warranty Period and for Design Defects notified before the
expiry of the Warranty Period, the Contractor shall rectify the Design
Defect according to the terms of this Condition 9.
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ANNEX 1
9.2.5 NETWORK LOADING DEFECT WARRANTY
The Contractor warrants that the Equipment shall be free from Network
Loading Defect during the Warranty Period.
9.2.6 NETWORK LOADING DEFECT RECTIFICATION SERVICE
During the Warranty Period and for Network Loading Defects notified
before the expiry of the Warranty Period, the Contractor shall rectify
the Network Loading Defects according to the terms of this Condition 9.
9.2.7 WARRANTY REPAIR, REPLACEMENT OR RECTIFICATION
The Contractor shall provide rectification services for Equipment
Defects, Design Defects or Network Loading Defects as the case may be,
within 28 days of:
a) receipt of the defective Equipment or Component at the Contractor's
facilities, carriage prepaid by the Purchaser;
b) receipt of notification of Software defects; or
c) notification of the defects if the relevant Service is to be provided
on Site pursuant to Condition 9.2.6.
If the Purchaser reasonably requires the rectification services on an
urgent basis, the Contractor shall use its best endeavours to provide
such services immediately on the Purchaser giving notice that it requires
such services. The Purchaser shall dispatch any hardware component
returned to the Contractor by carriage pre-paid to the Contractor's
facilities and the Replacement parts supplied by the Contractor shall be
dispatched carriage pre-paid by the Contractor to the destination
specified by the Purchaser.
In respect of Software defects, the Contractor shall to the extent
possible, provide remote diagnosis of the defects and downline load
changes to the Software or the replacement Software onto the Network. If
the correction of any Software defect requires visits to the relevant
site, the Contractor shall make that visits in accordance with Condition
9.2.8. In all instances of Software repair, the Contractor shall provide
support to cutover the changes to or the replacement version of the
relevant Software. The Contractor shall also follow proper Software
control procedures as required by its internal control plan to document
the changes to and/or the replacement version.
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ANNEX 1
The warranties contained in this Condition 9 shall not apply to any
Equipment or Components thereof that (a) has had the Serial Number,
Model Number, or other identification markings altered, removed or
rendered illegible, (b) has been damaged by or subject to improper
installation or operation, misuse, neglect, use in any way with
equipment not previously approved in writing by the Contractor, (c) has
been repaired or altered by other than the Contractor personnel and/or
has been subject to the opening of any sealed cabinet boxes without the
Contractor's prior written consent, and/or (d) has been used in any way
other than in strict compliance with the Contractor's installation and
operation instructions provided with the Equipment.
9.2.8 SITE VISITS AND INVESTIGATIONS
During the Term of the Contract, the Contractor shall visit each Site
for investigations and repairs in accordance with Clauses 9.2 and 9.3 of
the Scope of Works.
9.2.9 PURCHASER'S RIGHTS
If the Contractor fails to effect a remedy in accordance with Condition
9.2.7 or 9.2.8, the Purchaser may do so at the reasonable expense of the
Contractor and the Purchaser may contract with a third party to effect
that remedy. Any such emergency repair of any Equipment or Component by
the Purchaser's staff will not invalidate the Contractor's obligations
under this Condition, except to the extent the Purchaser damages the
Equipment or Component as a result of that repair or that the repair
is improper (including installation of defective Replacement Parts).
9.2.10 REPLACEMENT PARTS
The Contractor warrants and undertakes to and with the Purchaser that
any Replacement Parts provided to the Purchaser shall be warranted in
the same terms as set out in this Condition 9 for the balance of the
Warranty Period.
Upon supply of a hardware Replacement Part, the item of the Equipment
that is replaced shall automatically become the property of the
Contractor and the Replacement Part shall become the property of the
Purchaser.
The Purchaser shall be responsible for installing Replacement Parts
except that the Contractor shall install a Replacement Part if the
relevant defect is discovered as a result of a visit to the Site by the
Contractor.
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Annex 1
If a Replacement Part relates to Equipment produced by third parties and
listed in Annex 2 as items 1.2, 2.8 and 3.4 and in Annex 9 as item 6 and
needs to be paid for by the Contractor due to limitations of the
relevant third party warranty that result in costs to the Contractor, in
purchasing the Replacement Part from the third party supplier, the
Purchaser shall reimburse the Contractor for the costs of that
Replacement Part within 7 Business Days after receiving from the
Contractor a copy of the invoice of the third party supplier.
9.2.11 Repair or Replacement
The decision as to whether any hardware Component shall be repaired or
corrected (on the one hand) or replaced (on the other hand) by the
Contractor shall be made by the Contractor unless the same defect occurs
more than 3 times and the Contractor has not been able to verify the
existence of the failure with respect to the first Design Defect or
Equipment Defect affecting the Component concerned. Thereafter, the
decision with respect to that Component shall be made by the Purchaser.
9.2.12 Written Description/Report
All defective Equipment or Components shipped by the Purchaser to the
Contractor will be accompanied by a written description of the fault.
All repaired Equipment or Components delivered to the Purchaser will be
accompanied by a written report specifying the fault and the corrective
action taken.
9.3 Specific Warranties
Without prejudice to any other provision of this Condition, the
Contractor warrants and undertakes to and with the Purchaser that:
(a) the Contractor will own all Equipment provided or sold to the
Purchaser hereunder and that the Purchaser will acquire from the
Contractor good title to all Equipment at the time when the
Contractor has agreed to transfer title to the Purchaser, free
and clear of all mortgages, charges, liens, encumbrances or
third party interests, excluding title and ownership to the
underlying intellectual property of the Contractor;
(b) each Component and Equipment will be compatible and integrate
with every other Component referred to in Annex 2 and Annex 9,
in accordance with the Technical Specifications;
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ANNEX 1
(c) the Equipment and each Component comply with applicable U.S.
Health and Safety Laws and Regulations when properly used;
(d) It has and will carry out its obligations under the Contract
promptly and with all due care and skill and has procured and
will procure that any Sub-contractor employed by it shall apply
the same level of promptness, care and skill;
(e) all Equipment supplied under the Contract will be new, other than
Replacement Parts and Equipment repaired under this Condition and
returned to the Purchaser;
(f) all Services will be performed in a professional and workmanlike
manner.
9.4 Licenses
The Purchaser shall be responsible for all import licenses and customs
clearance for repaired or replaced Equipment Components provided by the
Contractor hereunder. The Contractor shall be responsible for any U.S.
export licenses that may be required for repaired or replaced
Equipment or Components provided by the Contractor hereunder.
9.5 Ad Hoc Equipment Defect Repair Service
In relation to Equipment for which the relevant Warranty Period has
expired and in relation to defects which are not Design Defects or
Equipment Defects, the Contractor shall provide a service
substantially similar to the Equipment Defect Repair Service on an ad
hoc basis at the Contractor's then prevailing charges and applicable
conditions. The Purchaser shall pay for such charges plus shipping,
customs, import duties, handling and transportation and other costs,
taxes and levies related to the transactions.
9.6 Availability of Replacement Parts
The Contractor shall have available Replacement Parts and facilities to
enable it to repair, correct or replace each Component for the Term of
the Contract. Further, the Contractor shall have the items of
Replacement Parts identified in Annex 14 available immediately
following request for replacement in Singapore and Hong Kong.
9.7 Contractor's Disclaimer
The warranties provided in this Condition constitute Contractor's
liability for established defective or non conforming Equipment and
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ANNEX 1
shall constitute the Purchaser's exclusive remedies therefor. These
warranties are in lieu of all other warranties expressed or implied or
statutory, including but not limited to, implied warranties of
merchantability or fitness for a particular purpose.
9.8 Software Maintenance After Warranty Period
Any time after the end of the Design Warranty period, the Purchaser may
require the Contractor to provide Software maintenance support. The
service will be provided by the Contractor for a twelve month period
upon payment of the fee specified in Annex 9 and shall include but not
limited to the following services:
(a) Corrections of defects in the Purchaser's current version of
Software so that the Software will operate as required in the
Technical Specifications.
(b) Periodic updates of the Software that may incorporate (i)
corrections of any substantial defects as may be identified by
Purchaser, the Contractor or other customers of the Contractor,
(ii) fixes of any bugs defects as may be identified by
Purchaser, the Contractor or other customers of the Contractor,
and (iii) at the sole discretion of the Contractor, enhancements
to the Software.
(c) Maintenance of the Contractor's facilities of a test version,
including a test data base, for the most recent version of the
Purchaser's Software.
(d) Costs of labour for all on-site support.
The service does not cover:
1. Enhancements or upgrades that are offered by the Contractor in
accordance with Annexes 9 and 10 of the Contract.
2. Custom programming services.
3. Reasonably incurred travelling and living expenses for on-site
support.
4. Hardware and related supplies.
These excluded services shall be available to the Purchaser upon request
and subject to a separate price, as will be provided by the Contractor
upon request from the Purchaser.
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In the event that the Purchaser discontinues and then desires
to resume these Software Maintenance support services, the
Purchaser shall be required to pay the total maintenance fees
for the discontinued period plus the required fee set out in
Annex 9 for such services for a period of twelve months prior
to commencement of services.
For the avoidance of doubt, any defect notified prior to
expiration of the relevant Warranty Period shall be rectified
under the terms of the relevant Warranty set out in this
Condition 9 and not under Condition 9.8.
10. LOCAL FACILITIES AND SERVICES/COMPLIANCE WITH LOCAL
LAWS/LICENCES, APPROVALS AND PERMITS
10.1 Responsibility of Contractor
For the avoidance of doubt, the Contractor shall be responsible
at its own cost for the following:
(a) all locally engaged skilled and unskilled personnel
required for the delivery, installation and
commissioning (as the case may be) of any Components or
any of the Equipment, including without limitation,
electricians, wiremen, labourers, tradesman, artisans
and translators;
(b) any work and/or entry permits, licences, visas, etc.
necessary for personnel employed or temporarily engaged
by the Contractor (and provided that the Purchaser shall
render assistance reasonably requested by the Contractor
in relation to such permits, licences and visas);
(c) customs and/or excise duties on tools and personal
effects of the Contractor's personnel;
(d) medical facilities as may be necessary; and
(e) telephone calls, telegrams and telex messages.
10.2 Taxes etc.
The Purchaser shall not be responsible for any tax assessed on
wages paid to the Contractor's personnel or the personnel of any
Sub-Contractor.
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11. TERMS OF PAYMENT
11.1 General
11.1.1 Contract Price
The Purchaser shall pay the Contract Price to the Contractor in
the instalments specified in Annex 3, Delivery and Payment
Schedule by two methods: 1) a down payment made via wire
transfer to the account specified in Condition 11.6 within 30
days of the execution date of this Contract, and 2) remaining
payments to be made in accordance with the provisions of the
Contract and the Letter of Credit.
11.1.2 Further Purchase
The Purchaser shall pay the prices determined under Condition 16
for Further Purchase Products acquired by the Purchaser in
accordance with Annex 10, Further Purchase Delivery and Payment
Schedules, as follows:
1. For purchases less than US $100,000 payment shall be made
via wire transfer to the bank account specified in Condition
11.6 within thirty (30) Business Days after shipment and
receipt of the appropriate invoice from the Contractor,
provided that outstanding payments due for cash purchases do
not exceed US $100,000.
2. For purchases of more than US $100,000 a down payment shall
be made via wire transfer to the account specified in Condition
11.6 within fourteen (14) Business Days of receipt of the
applicable Purchase Order and the remaining payments to be paid
by letter of credit in accordance with Condition 25.3. Alternate
payment provisions may be mutually agreed to between the
Purchaser and the Contractor for any Further Purchases
throughout the Term of the Contract.
11.2 Certificates
In relation to the instalments provided for in the Delivery and
Payment Schedule which are subject to the issue by the Purchaser
of a certificate, such instalments shall not be required to be
paid unless and until the Purchaser has granted to the
Contractor the relevant certificate.
11.3 Services
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Payment for Services shall be made via wire transfer within thirty (30)
days after submission of both the required certificate of completion and
an invoice for the Services by the Contractor.
11.4 Payment Requirements
An amount payable by the Purchaser shall only be required to be paid
with respect to any Equipment or Service if:
(i) each item of Equipment or Service so delivered or performed is
priced in accordance with the Contract;
(ii) where relevant, the applicable Certificate has been issued; and
(iii) in respect of Further Purchases, the Contractor has supplied to
the Purchaser shipping and other freight and delivery documents
and any other documentation for payment required under letters
of credit issued under Condition 25.3.
11.5 Deductions
Any damages, losses, costs, charges and expenses which the Contractor
may from time to time be liable under the Conditions of the Contract to
pay to the Purchaser by means of Purchaser's election to claim
liquidated damages in accordance with Condition 19. or under an arbitral
award or any judgement of the Court, may be deducted by the Purchaser
from any moneys that may be or become due to the Contractor or, at the
option of the Purchaser, (and without limiting the Purchaser's other
rights to recover under the Performance Bond) recovered under the
Performance Bond. If the moneys so due is more than the aggregate amount
then secured by the Performance Bond or the amount due to the Contractor
the excess shall be a debt due by the Contractor to the Purchaser and
may be recovered by the Purchaser from the Contractor.
11.6 Cash Payments
Payments due via wire transfer shall be made in US Dollars and to the
following bank account:
Union Bank
000 "X" Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx, 00000-0000
XXX
ACH Coordinator Name Telephone: Xxxxxx X. Xxxxxxxxx, 000-000-0000
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9-digit Routing Transit Number: 000000000
Depositor Account Title: ViaSat General Account
Depositor Account Number: 4000142622
Any overdue payments shall be subject to a late payment charge of one
and one-half (1-1/2%) per month, or the legal maximum, whichever is
less, plus reasonable collection charges including legal fees.
12. CUSTOMS DUTY AND SALES TAX
12.1 Purchaser's Liability
Subject to Condition 12.2, the Purchaser shall be liable for all customs
duty, import duties, taxes and similar levies payable with respect to
the importation of any Equipment into any country into which the
Equipment is imported after being shipped by the Contractor.
12.2 Contractor's Liability
The Contractor shall ship Equipment to such country or countries as may
be nominated by the Purchaser. Except in relation to Further Purchase
Products, the Contractor shall at the Contractor's own cost provide
warehouse facilities for Equipment until shipment.
The Contractor shall be liable with respect to any customs duty, import
duties and similar levies and any relevant fines or penalties, payable
with respect to or caused as a result of:
(a) the importation of any Equipment into any country not so nominated
by the Purchaser;
(b) the re-export of Equipment from any such country; and
(c) the transhipment of Equipment through any country unless directed
by the Purchaser.
12.3 Assistance
The Contractor shall use its reasonable efforts to assist the Purchaser
in minimising any duties payable, including, without limitation, by
arranging for importation of Equipment by or through import agents with
whom the Contractor has existing relationships.
12.4 Obligations of the Purchaser and the Contractor
The Purchaser and the Contractor each agree not to export the Equipment
directly or indirectly, except in compliance with all
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applicable U.S. export regulations. The parties will provide
mutual assistance as required to comply with the said US
export regulations and any necessary approvals, import licences
and similar permits and regulations.
The Purchaser, more specifically, agrees that it will not export
or re-export, directly or indirectly, Equipment or technical data
provided hereunder, nor any product thereof, in any form including,
but not limited to software, written, printed, verbal, telephonic,
fax or electronic communication, to the countries listed herein to
which export is restricted by the United States law or regulations
without the prior written consent, if required, of appropriate
United States government agencies including the office of Export
Administration, Department of Commerce: North Korea, Cuba and
Libya. This list may be adjusted by the Contractor from time to
time as may be required by United States law and shall be
provided to the Customer accordingly.
No product or technical data provided under this Agreement shall be
used either directly or indirectly in any nuclear activity nor the
design, development, production, stockpiling, transportation or use
of nuclear, biological or chemical weapons or missiles nor in any
facility engaged in such activities without prior written
authorisation from the U.S. Government and the Contractor. This
Agreement is conditioned upon the obtaining and the continuing
validity of all necessary United States of America governmental
approvals including but not limited to export licences and no
transaction shall be required by the Purchaser hereunder without
such approvals.
The Contractor shall obtain all export licences or approvals
required to export the Equipment and deliver it to the Purchaser.
13. PERFORMANCE BOND
13.1 Provisions
The Contractor shall, at its sold cost, provide to the Purchaser the
Performance Bond issued by a first class international insurance
company or bank approved by the Purchaser. The Contractor shall
submit the Performance Bond to the insurance company or bank as
aforesaid for processing immediately following the Date of Contract,
and shall procure that the Performance Bond is delivered to the
Purchaser within 14 Business Days after the Date of Contract. The
Performance Bond shall be in an amount equal to 20% of the full
amount of the Contract Price. The required form of the Performance
is specified in Annex II.
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13.2 Security
The Performance Bond shall secure the Contractor's performance of its
obligations under the Contract. It may be applied by the Purchaser in
whole or in part, at the Purchaser's sole option, towards satisfying the
Purchaser's claims, actions, damages, costs, losses and/or any expenses
whatsoever under an arbitral award or any judgement of the Court or
under Condition 19 or 23 of the Contract and sustained by the Purchaser
in connection with any breach by the Contractor by means of a delay in
meeting a Milestone Date. The Purchaser shall not draw down on the
Performance Bond for any other purpose. Save as required by law, the
Purchaser shall not, however, be precluded from pursuing any other
remedies it may have in respect of such breach, provided however, that
any amount received by the Purchaser under the Performance Bond shall be
deducted from any recovery claimed by the Purchaser in respect of that
breach.
13.3 Period
The Performance Bond shall take effect upon and from the Date of
Contract. The Performance Bond shall remain valid at least until
fourteen (14) Business Days after the System Acceptance Date for Phase
3.
13.4 Assignment
No permitted assignment by the Purchaser of all or part of its rights,
benefits or obligations under the Contract shall in any way prejudice
the operation of the Performance Bond. The Contractor shall procure that
it is a term of the Performance Bond that a permitted assignment by the
Purchaser shall not release or otherwise exonerate the issuer of the
Performance Bond.
13.5 The Purchaser shall notify the Contractor by facsimile no later than 10
Business Days prior to drawing on the proceeds of the Performance Bond
of its intention to draw, the amount to be drawn and the reason for
the drawing, and provide the Contractor a reasonable amount of time to
cure the defect before completing the drawing.
14. INTELLECTUAL PROPERTY RIGHTS AND ROYALTIES
------------------------------------------
14.1 Price Inclusive
The Contract Price shall include all amounts payable (including,
without limitation, royalties and license fees) for rights or
interests
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conferred under the Contract in relation to Intellectual Property
Rights or in respect of the Equipment or Contractor Documentation.
14.2 Rights of Contractor
All Intellectual Property Rights in the Equipment and Contractor
Documentation shall remain vested in the Contractor or its
licensers, as the case may be.
14.3 Royalty Free Licence
The Contractor hereby grants to Purchaser a royalty-free, perpetual,
non-exclusive, irrevocable, world-wide licence in the Intellectual
Property Rights in the Equipment and Contractor Documentation in so
far as necessary to enable the Purchaser only to:
(a) use the Equipment and Contractor Documentation or
distribute to end users in accordance with the Contract; and
(b) duplicate any Contractor Documentation in accordance with
the Scope of Works.
PROVIDED THAT the above license may be revocable at the option of the
Contractor to the extent to which the license relates to Equipment
and related Contractor Documentation upon and from the date upon which
such Equipment is required to be returned to the Contractor upon
termination of the Contract.
Where any license is necessary from a third party to enable the
Contractor to grant the above license to Purchaser, the Contractor
shall obtain such licence from the third party at its own expense.
14.4 Software
Software License
(a) Purchaser's license. The Software is provided to the
Purchaser only in object code form. The Purchaser has no rights
to Source Code or non-executable code except that in the event
Contractor is unable to perform a material Software support obligation
under the Contract due to insolvency the Contractor shall, at the
option of the Purchaser, furnish the Source Code, subject to a royalty
free Source Code license agreement for the sole purpose of continuing
to maintain or to have maintained the Equipment and the Network
without interruption for the period during which Contractor is unable
to perform the said support obligation.
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The Purchaser agrees that it will use the Software only as authorised herein,
that it will not copy or modify the Software, that it will not decompile,
disassemble, translate or reverse engineer the Software, and that it will
retain all proprietary and copyright notices of Contractor and its licensors in
the Software and any copies thereof. The Purchaser agrees to maintain the
Software in confidence and not disclose the Software to third parties except as
permitted herein or to employees who have need to know and to use the Software
only as permitted.
(b) End User Licenses The Purchaser may distribute the Software only
to its authorised end user customers pursuant to end user license agreements
enforceable under applicable laws. Such end user licenses shall include
provisions which prohibit use of the Software other than by authorised users
with the Equipment with which the Software were provided, ensure that the
Contractor has no liability to the licensee and afford protection for the
Contractor's intellectual property rights which are no less protective than
those imposed on the Purchaser under paragraphs (a) and (c) herein.
The Purchaser shall be responsible for ensuring that when local law is applied
to end user licenses, that Contractor and its licensors shall be protected to
the maximum extent permissible by local law.
(c) The licenses hereunder are not a sale of the Software or any rights
thereto and convey no right or interest to the licensee other than a right to
use the Software as provided herein. Copyright to, title in, ownership of, and
all rights associated with the Software shall remain vested in the Contractor
and its licensors.
(d) Nothing herein shall prohibit a licensee from achieving
interoperability of the Software with its operating environment to the extent
the licensee has such right under Articles 5 and 6 of the European Community
Council Software Directive of May 14, 1991. The Contractor shall provide the
Purchaser with reasonable information and assistance to achieve such
interoperability.
(e) The parties acknowledge that third party software may be included as
part of the Software delivered to the Purchaser hereunder and the Purchaser
agrees that it will not unreasonably withhold its approval of any sublicense
terms and conditions that may be required by such third party software
suppliers.
(f) The Control Hubs (as defined in the Scope of Works) utilises Microsoft
Windows NT as its operational software. By acceptance and use of the Control
Hubs as defined in the Scope of Works; the Purchaser agrees to comply with all
of the terms of the Microsoft Windows NT Licensing Agreement (current version
at the time of
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acceptance of individual Starwire NCS) including the requirement to
obtain client access licenses if so required under the terms of the
Microsoft Windows NT Licensing Agreement. Furthermore, the Purchaser
agrees to transfer the Microsoft licensing agreement to its sublicensees
and include in all sub-license agreements a provision identical to the
provision stated herein regarding compliance with the Microsoft
licensing agreement. Individual Microsoft licensing agreements shall be
provided by the Contractor with each of the Control Hubs.
(g) The Software licenses granted hereunder to the Purchaser may
only be terminated by the Contractor if the Purchaser has been in breach
of Condition 14.3 or 14.4 and has failed to remedy the default within 90
days of written notice from the Contractor requiring the Purchaser to
remedy the breach. In the event that a sublicensee fails to observe any
term or condition of the sublicense the license to the Purchaser
hereunder shall not be terminated provided that the Purchaser:
(1) takes reasonable steps to enforce the terms and conditions of
the sublicense;
(2) timely notifies Contractor of the sublicensee's breach;
(3) if requested by the Contractor assigns its rights of enforcement
against the sublicensee to Contractor;
(4) pays to the Contractor the applicable price hereunder for each
unauthorised copy of the Software which may be made in
connection with such breach.
Upon termination the Purchaser must immediately return all Software and
copies, in whatever form, to the Contractor. In the event of a breach,
Contractor or its suppliers are entitled to injunctive relief, in
addition to any other remedies available, it being acknowledged that
legal remedies are inadequate. The Purchaser's obligations with respect
to the Software will survive any termination or expiration of the
Contract.
14.5 Software Warranties
In addition to warranties contained in Condition 9, the Contractor
further warrants that:
(a) the Contractor or the supplier to the Contractor of any part
of the Software not owned by the Contractor (as the case may
require) is the beneficial owner of all right, title and
interest in and to the Software and all Intellectual Property
rights
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subsisting in and relating to the Software, free and clear of all third
party interests;
(b) the Contractor has the full authority to sub-license any part of the
Software not owned by it to the Purchaser and its permitted assigns,
transferees, operators and lessees of the Equipment in accordance with
and on the terms of the Contract;
(c) the entry into and performance of the licence or the sub-licensing or
other assignment or transfer as authorised by the licence will not
breach any agreement, understanding or arrangement to which the
Contractor or the supplier to the Contractor of any part of the Software
is a party;
(d) the sub-licenses of the Software not owned by the Contractor hereunder
shall survive any termination of any agreement between the Contractor
and suppliers to the Contractor of such Software;
(e) the Contractor has the full right and authority and has obtained all
necessary consents required to permit it to deliver the Contractor
Documentation relating to the Contractor Licensed Software to the
Purchaser;
(f) The License to use, and use of the Software by the Purchaser or any
permitted assignee, transferee, operator or lessee in accordance with
the licence granted by the Contractor does not, to the Contractor's best
knowledge, constitute an infringement or other violation of any
copyright, trademark, or patent of any third party;
(g) Neither the Contractor nor any Sub-Contractor are or will be in breach
of any agreement, arrangement or understanding with any third party, or
with each other, in any way which would constitute a breach of the
Contractor's obligations hereunder to the Purchaser, its customers or
permitted assigns or users of the Equipment.
The Contractor also represents and warrants to and undertakes with the
Purchaser that the foregoing representations and warranties will be true and
accurate throughout the continuance of the Contract with reference to the facts
and circumstances subsisting from time to time.
14.6 Consents
The Contractor warrants that it has all Intellectual Property Rights
necessary to enable the Contractor to meet it obligations under the
Contract.
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ANNEX 1
-------
14.7 Firmware
--------
The Contractor warrants that no license, approval or other right to use
the firmware embodied in the Equipment is required to be obtained by any
user of the Equipment or a Component provided that the end user
sublicences are entered into in accordance with Condition 14.4(B).
14.8 Right to Use and Copy Documentation
-----------------------------------
The copyrights, patents and other intellectual property rights relating
to any drawings and specifications and data issued by the Contractor in
connection with any Contractor Documentation shall remain the property
of the Contractor, but the Purchaser shall be entitled for all
reasonable purposes in connection with the Contract to a royalty-free
license to use such Contractor Documentation in connection with the
Contract subject to Condition 14.3. The Purchaser may make copies of the
Contractor Documentation provided that in the case of Contractor
Documentation or parts thereof (as applicable) specified as sensitive in
the Scope of Works, the Purchaser, its agents, consultants, employees
and contractors shall not distribute any copies of such Contractor
Documentation outside of their organisations except pursuant to
Conditions 27 and 32.2. The Contractor shall not be responsible for any
modification or translation of the Contractor Documentation made by the
Purchaser without the express prior written consent of the Contractor.
15. TRADEMARKS
----------
15.1 Manufacturer Details
--------------------
Subject to Condition 15.2 and except as directed by the Purchaser, all
Equipment (other than Software) shall bear the manufacturer's nameplate,
giving the manufacturer's name, the serial and model number and the date
of manufacture, provided that copyright notices on Software shall not be
deleted.
15.2 Purchaser Trademarks
--------------------
If requested by the Purchaser, the Contractor shall manufacture
Equipment bearing the trademark, tradenames and/or logo nominated by the
Purchaser. The Contractor shall be entitled to reasonable additional
compensation in respect thereof.
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15.3 Contractor Trade Names
----------------------
Subject to Condition 15.2, the Contractor may affix its trade name,
service marks or trademarks, now owned or hereafter acquired by the
Contractor to any of the Equipment. The Purchaser agrees not to apply
for registration of any trademarks used by the Contractor from time to
time. The Contractor grants the Purchaser a non-exclusive and
royalty-free licence to use the Contractor's trademarks solely for the
purposes of the Contract during the Term thereof and in a manner
pre-approved in writing by the Contractor. The Contractor agrees that
the Purchaser may in their publications refer to "ViaSat, Inc" being
the supplier of the Equipment. No prior approval from the Contractor is
required in connection with such use.
16. *****************
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*CONFIDENTIAL TREATMENT REQUESTED
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* CONFIDENTIAL TREATMENT REQUESTED
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17. CONTRACT AMENDMENTS
17.1 Purchaser May Propose
The Purchaser shall have the right at any time to propose amendments to
any of the provisions of the Contract or any other instructions or
course of action being followed by the Contractor in accordance with the
terms of the Contract. The Purchaser shall provide the Contractor with
full written particulars of any such amendment proposed by it.
[*] CONFIDENTIAL TREATMENT REQUESTED
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17.2 Quotation
Within 7 Business Days of receipt of notice of an amendment given by the
Purchaser pursuant to Condition 17.1 and in respect of any amendment
proposed by the Contractor, the Contractor shall submit to the Purchaser
a full written quotation specifying the form or likely form that the
proposed amendment will take, any consequential changes (including but
not limited to any change to the Implementation Plan and Milestone
Dates) which in the Contractor's reasonable opinion will be required to
be made to the Contract, or any work which has come or is due to come
into being under it and any additional costs. Upon receipt of such
quotation the Purchaser may elect:
(a) to accept such quotation in which case the Contract shall be
amended accordingly forthwith by written agreement signed by the
Purchaser and the Contractor;
(b) to withdraw its proposed amendment or refuse to accept the
amendment proposed by the Contractor in which case the Contract
will continue in force unchanged; or
(c) to discuss such quotation with the Contractor and to agree a
further or revised quotation, in which case the Contract shall be
amended accordingly forthwith by written agreement signed by the
Purchaser and the Contractor.
17.3 Defect or Deficiency
For the avoidance of doubt, the cost of any amendments or variations
required by reason of any defect or deficiency in any Design or
Documentation or any Equipment or Software made or provided by the
Contractor shall be borne solely by the Contractor.
17.4 Disposition
If the cost of any Equipment made obsolete or redundant as a result of
an amendment made pursuant to Condition 17.2 is included in the
Contractor's quotation, the Purchaser shall have the right to prescribe
the manner of disposition of such Equipment or Component and to receive
any proceeds arising therefrom and the Contractor shall pay those
proceeds as directed by the Purchaser.
18. LIABILITY
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18.1 Each party shall be liable for, and shall indemnify the other
party and hold the other party harmless against any and all
claims, demands, actions, liabilities, losses, costs and
expenses whatsoever and howsoever arising under any statute or
at common law incurred or suffered by the other party in respect
of personal injury to and/or death of any person or in respect
of movable and immovable property arising out of its wilful
misconduct or negligent act or omission, whether or not in the
course of or caused by the performance of the Contract.
18.2 Product Liability
Notwithstanding Conditions 18.1 or any other provision of the
Contract, the Contractor shall be liable for and shall indemnify
the Purchaser, and hold the Purchaser harmless against, any and
all claims, demands, actions, liabilities, losses, costs and
expenses for which the Purchaser is required to be responsible
at law on a claim by employee, contractor, lessee, customer,
permitted assign or third party whatsoever and howsoever arising
out of physical injury to person or property caused by the use
or operation of any Equipment by the Purchaser, a Subscriber,
permitted assign or authorised user to the extent not caused by
any wilful misconduct or negligent act or omission of the
Purchaser, a Subscriber or any other person (other than the
Contractor or its sub-contractor and other than any such act or
omission occurring prior to shipment to the Purchaser).
18.3 Acknowledgement by Contractor
Subject to Condition 32.8, the Contractor acknowledges that the
operation of all or part of the Equipment may be undertaken by
assignees, licensees, or sub-licensees from the Purchaser of all
or part of the benefit of the Contract and that all or part of
the Equipment may be used by third parties under lease, licence
or other similar arrangements from the Purchaser, subject to the
terms hereof.
18.4 Insurance
The Contractor shall provide to the Purchaser evidence
satisfactory to the Purchaser of the maintenance by the
Contractor of sufficient insurance against any liabilities of
the Contractor under this Condition 18 and Condition 20. If the
Contractor shall fail to effect any insurance required under
this Condition 18.4 and Condition 20 or pay any insurance
premiums in respect thereof, the Purchaser shall be entitled to
effect such insurance or pay such insurance premiums and the
Contractor shall repay to the Purchaser on demand all money
expended by the purchaser in so doing, together with interest at
the rate of one and a half (1-1/2%) per month.
18.5 Efforts to minimise liability
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In consideration of the Contractor acceptance the liability provisions
of the Contract, the Purchaser agrees to take all necessary steps by
contract, notices, warnings or otherwise to minimise the liability of
the Purchaser and the Contractor.
18.6 Limitation of Liability
Under no circumstances shall the a party be liable for any special,
indirect or consequential damages including, but not limited to, loss of
profit, loss of use, loss of revenues or damages to business or
reputation arising from the performance or non-performance of any aspect
of the Contract. In no event shall a party's liability to the other
party for any reason exceed an amount equal to two (2) times the
Contract Price. Notwithstanding the foregoing either Party shall be
entitled to pursue an action for an injunction or to compel specific
performance or for other equitable relief.
19. LIQUIDATED DAMAGES FOR DELAY PRIOR TO COMPLETION OF PHASE 3
19.1 Excusable Delays
If by reason of any of the following events ("events of excusable
delay"):
(a) damage in transit occurring to any Equipment not caused by the
inadequacy of the Contractor's packing or other fault of the
Contractor, causing delay to the delivery of that Equipment
under the Contract, or delay in the completion of any part of
the Works affected thereby;
(b) Force Majeure, causing delay to the Contractor in the completion
of any part of the Works; or
(c) a delay in obtaining customs clearance for any Equipment through
no fault of the Contractor;
(d) any delay in respect of a Milestone Date which follows from a
delay in respect of a previous Milestone Date for which
liquidated damages have been paid;
(e) failure of Purchaser to obtain relevant permissions or approval
for transmission from the relevant satellite operator(s) or
governmental authorities, due to reasons other than default of
the Contractor.
then, provided that the Contractor shall have used and shall continue to
use reasonable endeavours to avoid and minimise the delay, and
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provided that the Contractor shall within 7 days of becoming aware of the
relevant event have given to the Purchaser notice of the claim for the
event and shall have supplied the Purchaser with full particulars of the
extension to which it considers itself entitled, the Purchaser shall on
receipt of such notice and particulars grant to the Contractor in writing
either prospectively or retrospectively, a day to day extension of the
Milestone Date relevant to that part of the Work reasonably affected by
the event of excusable delay provided that such extensions shall in no
event exceed the period of delay caused by the event of excusable delay.
If the Contractor gives such a notice it shall from the date of notice
comply with all reasonable instructions the Purchaser may give to minimise
any actual or anticipated delay.
19.3 No Extension
The Contractor shall not be entitled to any extension of a Milestone Date
relating to Design Reviews, Factory Acceptance Tests or System Acceptance
Tests:
(a) to the extent the delay is caused by the Contractor having failed to
complete any delivery or installation of any Equipment or Component
or the provision of any Services or failed to comply with any of the
other provisions of the Contract through no fault of the Purchaser;
(b) to the extent the delay is caused by any default, negligence or
breach of duty (statutory or otherwise) by the Contractor,
Sub-contractors, or other persons for whom the Contractor is
responsible.
19.4 Liquidated Damages
Subject to any extension granted by the Purchaser in accordance with
Condition 19.1, if the Contractor fails to complete any material part of
the Works before the relevant Milestone Date, the Contractor shall pay to
the Purchaser liquidated damages in the amount set out in the Delivery and
Payment Schedule, subject to such caps as specified therein.
19.5 Limit
The aggregate amount of all the Contractor's liability for liquidated
damages for delay under the Contract shall not exceed 20% of the Contract
Price. The Contractor acknowledges such damages would not be a penalty.
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19.6 No Limitation
Payment of damages by the Contractor pursuant to Condition 19.4 shall
not (a) relieve the Contractor from any of its other obligations under
the Contract; (b) be limited by conditions as to the payment of damages
by the Contractor set out elsewhere in the Contract; (c) limit damages
otherwise payable by the Contractor under the Contract.
20. TITLE RISK AND INSURANCE
20.1 Notwithstanding Conditions 22 and 23 on Termination, absolute and
exclusive right, title and interest to Equipment, (but excluding the
relevant Software) shall pass to the Purchaser:
(a) in the case of Equipment comprised within Xxxxx 0, Xxxxx 0 and
Phase 3, upon payment by the Purchaser of the Milestone Payment
relating to the relevant System Acceptance Date;
(b) in the case of any other Equipment, upon payment by the Purchaser.
20.2 Risk
Without prejudice to Condition 20.1, the Contractor shall have full
responsibility for and risk of all Equipment.
(a) in the case of Equipment and Components comprised within each Phase
until the relevant System Acceptance Date;
(b) in the case of any other Equipment or Component, upon delivery to a
designated carrier by the Contractor in accordance with the
Contract.
The Contractor shall, at its sole cost;
(c) for the Term of the Contract, insure, and maintain insurance:
(i) for the Equipment, the Software and each Component against
loss or damage to the extent;
(1) caused by the Contractor or its agents; or
(2) occurring whilst the Equipment or Component is in the
possession or control of the Contractor;
in the amount of the full replacement value; and
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(ii) against third party liability for a minimum amount of
US$5 million; and
(iii) against product liability for a minimum amount of
US$5 million.
(d) insure and maintain insurance Erection All-Risks insurance
policies for the Equipment and each Component comprised within
each Phase until the relevant System Acceptance Date for the
full replacement value thereof.
(e) insure and effect marine insurance for the Equipment and each
Component for any transit from the Contractor's premises to any
Site for its CIF value. The terms of such insurance shall
include:
(i) if transit is by air:-
- Institute Cargo Clauses (Air) (Excluding sending by
post) CL 259
- Institute Strikes Clauses (Air Cargo) CL 260
- Institute War Clauses (Air Cargo) CL 258
(ii) if transit is by sea:-
- Institute Cargo Clauses (A)
- Institute Strikes Clauses (Cargo) CL 256
- Institute War Clauses (Cargo) CL 255
(f) effect and maintain the insurances that are provided for by the
laws in the country in which works are performed as insurances
required of the Contractor.
The Purchaser shall be named in each such insurance policy as an
additional insured thereunder in respect of its rights and interest.
20.3 Insurance Companies
The Contractor shall be required to obtain the prior approval of the
Purchaser for the insurance companies providing insurance and the terms
of each insurance policy referred to in Condition 20.2. Without limiting
the foregoing provisions, it shall be a condition of any such insurance
policy that neither the Contractor nor the insurance company may cancel
the policy without giving to the Purchaser not less than 30 days prior
notice in writing.
20.4 Evidence
The Contractor shall provide to the Purchaser a copy of an insurance
certificate in order for the Purchaser to verify the coverage referred
to
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ANNEX 1
above and shall provide to the Purchaser evidence of timely payment of all
premiums due in respect thereof.
20.5 Sub-Contractors
To the extent required by law (statute or common law), each party shall be
responsible for the acts or omissions of persons to whom such party
sub-contracts, or allows to perform, any part of the Works and in the case
of the Contractor this shall include responsibility for the acts or
omissions of Sub-Contractors.
20.6 Repair or Replacement
In the event that the Purchaser discovers that damage to any Equipment for
which the Contractor has installation responsibility as identified in
Annex 2 has occurred whilst in transit, the Purchaser shall promptly
notify the Contractor and follow the reasonable instructions of the
Contractor as to whether the Equipment concerned, or any Component
thereof, should be held by the Purchaser for repair by the Contractor, or
returned to the Contractor for repair and / or replacement. The Purchaser
shall give to the Contractor reasonable details of the damage discovered.
Notwithstanding any actions taken under this Condition, the Contractor
shall remain responsible for delivering Equipment or Components free of
damage to the Purchaser by the relevant Milestone Date subject under the
Contract, subject to excusable delays under Condition 19.2.
21. PURCHASER'S PARTICIPATION
21.1 Right to Participate
The Purchaser shall have the right to participate in all the Design Review
procedures and Tests to be performed under the Contract. The Purchaser may
also appoint a full time representative to work at the Contractor's
offices representative for the purpose of such participation for the
period commencing from the Date of Contract and ending on the Phase 3
System Acceptance Date. The Contractor shall provide such Purchaser's
representative with an office and office support. The Purchaser shall
reimburse the Contractor for telephone calls and faxes made by its
representative.
21.2 Contractor's Employees, etc.
Any director, employee or agent of the Contractor assisting the Contractor
in performance of its obligations hereunder shall remain the servant
and/or agent and under the control of the Contractor. The Purchaser shall
not be liable for any act or omission of such director, employee or agent
but the Purchaser shall use proper care and skill in
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giving instructions to be carried out by such director, employee or
agent.
21.3 Purchaser's Employees etc.
Any director, employee or agent of the Purchaser participating in the
Works shall remain the servant and/or agent and under the control of the
Purchaser. The Contractor shall not be liable for any act or omission of
such director, employee or agent but the Contractor shall use proper
care and skill in giving instructions to be carried out by such
director, employee or agent.
22. TERMINATION OF CONTRACT BY THE CONTRACTOR
22.1 Termination for Breach
If the Purchaser commits any material breach of or fails in any material
respect to comply with and observe the provisions of the Contract and
such breach or failure is not remedied within thirty (30) days of
written notice by the Contractor to the Purchaser, the Contractor may,
by giving notice in writing to the Purchaser, terminate the Contract
PROVIDED THAT the Contractor shall not be entitled to terminate the
Contract for breach of the Software license granted under Condition 14.4
unless the Contractor becomes entitled to terminate such license in
accordance with its terms.
22.2 Termination for Insolvency
If the Purchaser takes or has taken or instituted against it any action
or proceeding whether voluntary or compulsory which has as an object or
may result in the winding up of the Purchaser (other than a voluntary
winding up by members for the purpose of reconstruction or
amalgamation), (other than an action or proceeding which is dismissed
within 30 calendar days after it is brought or commenced) or is placed
under official management or enters into a compromise or other
arrangement with its creditors or any class of them or an administrative
receiver or administrator or receiver is appointed to carry on its
business or to take control or possession of any of its assets for the
benefit of its creditors or any of them (or any analogous proceedings in
any jurisdiction), then in any of these events the Contractor may, by
giving notice in writing to the Purchaser, terminate the Contract.
22.3 Termination for Force Majeure
Subject to Condition 22.4, and notwithstanding the provisions of
Condition 20.2, if the conditions giving rise to an event of Force
Majeure preventing performance by the Purchaser of its obligations under
the Contract shall continue for more than 60 days, or if these
conditions, once having ceased, shall recur so that the condition of
Force Majeure continues
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for an aggregate of a 60 days in any six months period, the Contractor
may forthwith terminate that part of the Contract which is affected by
the Purchaser's inability to perform its obligations.
22.4 Conditions
The Contractor shall not be entitled to terminate the Contract under
Condition 22.2 or 22.3 unless it has given to the Purchaser not less
than thirty (30) days prior written notice of its intention to terminate
and has entered into good faith negotiations with the Purchaser for such
Contract Amendments as may be required in order to achieve the
Purchaser's requirements through means alternative to those affected by
the Force Majeure. The Contractor shall, if requested by the Purchaser
if any event of Force Majeure occurs, enter into good faith negotiations
with the Purchaser to minimise the effects of the Force Majeure, or for
such Contract Amendment as may reasonably overcome the impediments
caused by the Force Majeure.
22.5 No Other Right
The Contractor shall not be entitled to terminate or abandon the
Contract under any circumstances other than those specified in this
Condition 22.
22.6 No Prejudice
No action taken by the Contractor under this Condition 22 shall
prejudice the right of the Contractor to recover from the Purchaser all
sums that may then be due or become due to the Contract under or in
relation to the Contract. Termination of the Contract under this
Condition 32 shall without prejudice to any accrued rights of the
parties up to the date of termination.
23. TERMINATION OF THE CONTRACT BY THE PURCHASER
23.1 Termination Rights for Delay
Prior to Phase 3 System Acceptance Date, the Purchaser may by notice in
writing to the Contractor terminate the Contract forthwith:
(a) If the Contractor shall fail to complete "Proof of Critical
Design #1" as referred to in the Scope of Works by its relevant
Milestone Date;
(b) If the Contractor shall fail to complete the "Proof of Critical
Design #2" as referred to in the Scope of Works by its relevant
Milestone Date; or
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(c) If the Contractor shall fail to complete the following Milestones as
referred to in the Scope of Works within 10 weeks of the relevant
Milestone Dates specified in Annex 3:
(1) Phase 1 Factory Acceptance
(2) Phase 1 System Acceptance
(3) Phase 2 System Acceptance
(4) Phase 3 System Acceptance
Provided that if the Purchaser shall have ordered any Further Purchase
Products for delivery prior to Phase 2 System Acceptance Date the right
to terminate the Contract shall cease after the successful completion of
Phase 2 System Acceptance. If Purchaser is entitled to terminate under
23.1 (a), (b) or (c) Purchaser must exercise the right to terminate by
written notification to the Contractor within 5 Business Days of the
event giving rise to the right of termination or the right to terminate
will be deemed to be waived with respect to that event.
Milestones Dates shall each be extended for the length of events of
excusable delay (as listed in Condition 19.1) in accordance with
Condition 19 or as otherwise may be provided for in the Contract.
23.2 Termination Rights for Default
If the Contractor commits any material breach of or fails in any
material respect to comply with and observe the provisions of the
Contract other than non-delivery or delayed delivery of the Equipment
and such breach or failure is not remedied within thirty (30) days of
written notice by the Purchaser to the Contractor, then the Purchaser
may, by giving notice in writing to the Contractor, terminate the
Contract.
23.3 Termination for Insolvency etc.
If the Contractor takes or has taken or instituted against it any action
or proceeding whether voluntary or compulsory which has as an object or
may result in the winding up of the Contractor (other than a voluntary
winding up by members for the purpose of reconstruction or
amalgamation), (other than in action or proceeding which is dismissed
within 30 calendar days after it is brought or commenced) or is placed
under official management or enters into a compromise or other
arrangement with its creditors or any class of them or an administrative
receiver or administrator or receiver is appointed to carry on its
business or to take control or possession of any of its assets for the
benefit of its creditors or any of them (or any analogous proceedings in
any jurisdiction)
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then in any of these events the Purchaser may, be giving notice in
writing to the Contractor terminate the Contract.
23.4 Termination for Force Majeure affecting Purchaser
Notwithstanding the provisions of Condition 19.1, if the conditions
giving rise to an event of Force Majeure preventing performance by the
Purchaser of its obligations shall continue for more than 60 days, or if
these conditions, once having ceased, shall recur so that the condition
of Force Majeure continues for an aggregate of 60 days in six months'
period, the Purchaser may forthwith terminate either the Contract or the
order for any or all the delayed Equipment, Software, or Components.
23.5 Termination for Force Majeure affecting Contractor
Notwithstanding the provisions of Condition 19.1, if the conditions
giving rise to an event of Force Majeure preventing performance by the
Contractor shall continue for more than 60 days, or if these conditions,
once having ceased, shall recur so that the condition of Force Majeure
continues for an aggregate of 60 days in any six months period, the
Purchaser may forthwith terminate that part of the Contract which is
affected by the Purchaser's inability to perform its obligations, or if
Phase 3 System Acceptance Date has not yet occurred by that time, the
Purchaser may forthwith elect to terminate the whole of the Contract.
The Purchaser shall exercise its right to terminate no later than five
(5) Business Days after the conditions resulting from any particular
event of Force Majeure which prevents performance have ceased. If the
Purchaser shall not so exercise its rights, the Purchaser shall be
deemed to have waived its right to terminate either the Contract or that
portion of the Contract so affected in respect of the particular event
of Force Majeure.
23.6 No Prejudice
No action taken by the Purchaser under this Condition 23 shall prejudice
the right of the Purchaser to recover from the Contractor all sums of
money that may then be due or become due to the Purchaser under or in
relation to the Contract whether as liquidated damages or otherwise.
23.7 Conditions
The Purchaser shall not be entitled to terminate all or part of the
Contract under Condition 23.3 or 23.4 unless it has given to the
Contractor not less than 30 days prior written notice of its intention
to terminate and has entered into good faith negotiations with the
Contractor for such Contract Amendments as may be required in order to
achieve the requirements of the parties through means alternative to
those affected by the Force Majeure. The Purchaser shall, if requested
by the Contractor if an event of Force Majeure occurs, enter into good
faith negotiations with the
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Contractor to minimise the effects of the Force Majeure, or for such
Contract Amendment as may be reasonably required to overcome the
impediments caused by the Force Majeure.
23.8 Accrued Rights
Termination of the Contract under the foregoing provisions of this
Condition 22 or 23 shall be without prejudice to any accrued rights of
the parties up to the date of termination.
24. RIGHTS AND OBLIGATIONS OF THE PARTIES IN THE EVENT OF TERMINATION
24.1 Refunds, Payments and Return of Equipment upon termination for delay
under Condition 23.1
(a) Upon termination of the Contract under Conditions 23.1(a), 23.1(b)
or 23.1(c), the Purchaser shall have the right to reject and return
to the Purchaser all or part of the Equipment received under the
Contract. The Purchaser shall by written notice to the Contractor
notify the Contractor of the items of Equipment rejected ("Rejected
Equipment"). The Contractor shall within 5 Business days of receipt
of such notice open an irrevocable letter of credit in the favour of
the Purchaser in an amount equal to all the moneys received for the
Rejected Equipment (including Further Purchase Products, if
delivered to the Purchaser of the date of termination, subject to
Condition 24.1(d). The letter of credit shall be payable at sight
upon presentation of shipping documentation by the Purchaser. The
Contractor shall bear all costs of the letter of credit.
(b) In the event of termination under condition 23.1(b), the Contract
shall pay an additional sum being 10% of the Contract Price as
liquidated damages to the Purchaser. This amount shall be added to
the amount of the letter of credit required under Condition 24.1(a)
herein.
(c) The Purchaser shall return the Rejected Equipment using a carrier
and packaging instructions of the Contractor's choice within fifteen
(15) days of issuance of the letter of credit specified in Condition
24.1(a) herein. Delivery Costs shall be reimbursed by the Contractor
to the Purchaser.
(d) Where Rejected Equipment includes Further Purchaser Products
delivered to and fully paid for by the Purchaser, the Contractor
shall only be required to refund to the Purchaser
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50% of the purchase price for such Further Purchase
Products. If following the return of such Further
Purchase Products to the Contractor, the Contractor has
resold them to a third party, the Contractor shall
forthwith pay to the Purchaser 50% of the gross sale
proceeds.
(e) Where Rejected Equipment includes Further Purchase
Products partly paid for and not yet delivered, the
order(s) for such Further Purchase Products shall be
deemed cancelled and the Contractor shall refund to the
Purchaser all monies received for such Further Purchase
Products.
24.2 Termination under Condition 23.3 or 23.5 prior to completion of
Phase 3
If the Contract shall be terminated under Condition 22.3 or 23.5
prior to the Phase 3 System Acceptance Date, the Purchaser shall
have the right to elect either.
(1) to keep all Equipment delivered under the Contract
provided that all the outstanding Milestone Payments and
the next Milestone Payment should have been/be made; or
(2) to reject and return all or part of the Equipment for the
Contractor. The Contractor shall correspondingly refund to
the Purchaser all monies received by the Contractor in
respect of the rejected Equipment.
24.3 Other Effect of Termination
Notwithstanding any termination of the Contract, the parties
shall continue to be liable thereafter with respect to the
following Conditions:
(a) Condition 9.2, to the extent of any completed Equipment
delivered by the Contractor prior to or after
termination;
(b) Conditions 18, 19, 27, 29 and 30;
(c) this Condition;
(d) any other provision of the Contract expressed or by its
nature or intent is to continue after termination.
Termination of the Contract shall also not affect the Software
license, the Performance Bond and the Letter of Credit which
shall remain valid and enforceable according to their terms
unless and until terminated in accordance with their terms.
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Termination of the Contract shall be without prejudice to the accrued
rights of either party under the Contract as at termination (including,
without limitation, liability of the Contractor under Condition 18), and
where the Purchaser has the right to deduct any damages from any payment
under the foregoing provisions, nothing herein shall prevent the
Purchaser separately claiming for other damages if it is permitted to do
so under the Contract (subject always to Condition 18.6). Nothing in the
foregoing provisions shall prevent either party from pursuing an order
of specific performance of the Contract at any time prior to
termination.
24.43 Warranty Service
If requested by the Purchaser in the event of termination of the
Contract for any reason except for termination under Condition 22.1 the
Contractor shall negotiate in good faith for the provision by the
Contractor of maintenance and support service with respect to the
Equipment and Software after termination of the Contract, on reasonable
terms.
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26. ASSIGNMENT AND SUB-CONTRACTING
26.1 No Assignment by Sub-Contractor
The Contractor shall not, without the written consent of the Purchaser
first obtained assign, mortgage, charge or encumber or any
obligation or benefit howsoever arising, or which may arise under
the Contract except for any of the moneys due or becoming due under
the Contract.
26.2 Sub-Contracts
The Contractor shall only sub-contract all or part of the Works to a
Sub-Contractor approved by the Purchaser, such approval not to be
unreasonably withheld.
26.3 Assignment by Purchaser
The Contractor agrees that the Purchaser shall have the right to assign
any or all of its rights and benefits under the Contract to any
company within the Xxxxxxxxx Whampoa Group. The Contractor further
agrees that the Purchaser shall have the right to assign any or all
its rights and benefits under the Contract to any other third party
with the prior written consent of the Contractor such consent not
to be unreasonably withheld.
27. CONFIDENTIALITY
* CONFIDENTIAL TREATMENT REQUESTED
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The parties agree that the Reciprocal Non-Disclosure Agreement
between the parties dated 11th January 1996 shall remain binding
on the parties.
28. NOTICE
28.1 Any notice or other communication required or permitted to be given
by or pursuant to the Contract shall be sufficiently given if given
in writing and delivered personally or sent by prepaid registered
airmail post or telex or facsimile to the addresses of the parties
specified in Condition 28.3 or to such other address or such other
person as the party may from time to time notify to the other party
in writing.
28.2 Any such notice or other communication issued in accordance with
this Condition shall be deemed to have been received:
(a) if delivered personally, on the date of delivery;
(b) if sent by pre-paid post, ten (10) days after the date
of posting unless actually received earlier;
(c) if sent by facsimile, upon receipt, if followed immediately
by pre-paid registered airmail post; or
(d) if sent by telex, on receipt of the correct answerback code
of the addressee at the end of the communication.
28.3 The addresses referred to in this Condition shall be:
(a) The Purchaser:
Xxxxxxxxx Corporate Access (HK) Limited
Rm 1610, 16/F One Harbourfront
00 Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxx Xxxx
Fax No.: (000) 0000 0000
Contact: Xxxxx Au Xxxxx
(b) The Contractor:
ViaSat, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx
XX 00000-0000
U.S.A.
Fax No.: (000)0000000
Contact: Xxxx Xxxx
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29. APPLICABLE LAW
The Contract shall be subject to, governed by and construed and take
effect in all respects in accordance with the laws of England. The
parties submit to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
30. ARBITRATION
If any dispute or difference of any kind whatsoever (a "Dispute") shall
arise between the parties in connection with, or arising out of, the
Contract, or the breach, termination or validity thereof and the Dispute
cannot be settled by mutual discussions, the Dispute shall finally be
settled by arbitration in accordance with the Rules of the London Court
of International Arbitration, which Rules are deemed to be incorporated
by reference herein. The place of arbitration shall be London, England.
The language to be used in the arbitral proceedings shall be English.
The arbitration tribunal (the "Tribunal") shall consist of three
arbitrators. The Contractor and the Purchaser each shall appoint one
arbitrator and the two arbitrators so appointed shall appoint the third
arbitrator who shall act as the presiding arbitrator of the Tribunal.
The award rendered shall apportion the costs of the arbitration, and
may, in the discretion of the arbitrators, include provision for
interest on late payments from the date such payments were required to
be made. Any cash award shall be in US dollars and shall be paid
promptly. The award rendered shall be in writing and shall set forth in
reasonable detail the facts of the Dispute and the reasons for the
Tribunal's decision. The parties to the Dispute undertake to implement
the arbitration award. The award rendered in any arbitration commenced
hereunder shall be final and binding upon the parties, and judgement
thereon may be entered in any court having jurisdiction for its
enforcement. The parties hereby renounce their right to appeal from the
decision of the Tribunal and agree that no party to a Dispute shall
appeal to any court from the decision of the Tribunal. In this regard,
the parties hereto expressly agree to waive Section 641 of the Reglement
op de Rechtsvordering and Article V(1) (a) and Article VI of the 1958
New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, so that there shall be no appeal to any court from the
decision of the Tribunal. In addition, the parties agree that no party
except in conjunction with an action by either Party for an injunction
or to compel specific performance or for other equitable relief shall
have any right to commence or maintain any suit or legal proceeding
concerning a Dispute hereunder until the Dispute has been determined in
accordance with the arbitration procedure provided for herein and then
only to
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enforce or facilitate the execution of the award rendered in such
arbitration.
31. ENGLISH LANGUAGE
Except as otherwise specifically provided, all documents relating to the
Contract or to the Works and all communications between the parties
shall be in the English language.
32. MISCELLANEOUS
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32.4 No Waiver
No failure or delay by either party in exercising any right, power or
remedy under the Contract against the other party shall operate as a
waiver thereof, nor shall any single or partial exercise by a party of
any right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies provided in the Contract are cumulative and not exclusive of
any remedies provided by law except as expressly limited herein.
32.5 Severance
Any provision of the Contract prohibited by or unlawful or unenforceable
under any applicable law actually applied by any court of competent
jurisdiction shall, to the extent required by such law, be severed from
the Contract and rendered ineffective so far as is possible without
modifying the remaining provisions of the Contract. Where, however, the
provisions of any such applicable law may be waived, they are hereby
waived by the parties to the full extent permitted by such law to the
end that the Contract shall be valid, binding and enforceable in
accordance with its terms.
32.6 Integration
* CONFIDENTIAL TREATMENT REQUESTED
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Except as agreed between the parties in writing and [in relation
to the Reciprocal Non-Disclosure Agreement dated 15th December
1995 between the parties], the Contract sets forth the entire
agreement between the parties on the subject matter hereof and
supersedes any previous agreement, undertaking, correspondence,
memorandum, letter of intent or representation on the subject
matter hereof.
32.7 No Prejudice
The grant of approvals under Clause 6.2.6 of the Scope of Works
and the issue of any Design Review Certificate, Factory
Acceptance Certificate or System Acceptance Certificate by the
Purchaser shall not in any way prejudice or affect the rights of
the Purchaser under the Contract or amend or reduce the
Contractor's responsibilities under the Contract.
32.8 No Third Party to Benefit
Nothing in the Contract shall, expressly or impliedly, give to
any person other than the parties hereto any benefit or legal or
equitable right, remedy or claim except as expressly provided
herein.
32.9 Time is of the essence in the Contract.
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