1
Exhibit 10.82
COST PLUS INCENTIVE CONTRACT
NUMBER SHB 98006
7/06/98
FOR
INTEGRATED CARGO CARRIER (ICC) INTEGRATION AND OPERATION (I&O) SUPPORT
BETWEEN
DAIMLER-BENZ AEROSPACE AG
RAUMFAHRT-INFRASTRUKTUR
POSTFACH 10 59 09
28059 BREMEN
AND
SPACEHAB, INCORPORATED
0000 XXXXXX XXXX XXXX
XXXXX 000
XXXXXX, XXXXXXXXX 00000
2
TABLE OF CONTENTS
Article 1 - Entire Agreement...............................................1
Article 2 - Definitions....................................................1
Article 3 - Scope of Work..................................................1
Article 4 - Period of Performance..........................................2
Article 5 - Contract Amount................................................2
Article 6 - Payment........................................................3
Article 7 - Limitation of Funds............................................4
Article 8 - Supplies/Services and Delivery Schedule........................4
Article 9 - Title and Delivery.............................................5
Article 10 - Packaging and Marking..........................................5
Article 11 - Inspection and Acceptance......................................5
Article 12 - Place of Performance...........................................5
Article 13 - Items, Equipment, Property, Services to
be Furnished by SPACEHAB, Inc.
And/or the Government on a "No Charge" Basis...................5
Article 14 - Exchange of Technical Information..............................6
Article 15 - Excusable Delays...............................................7
Article 16 - Changes........................................................7
Article 17 - Amendments.....................................................8
Article 18 - Stop Work Orders...............................................8
Article 19 - Notices........................................................8
Article 20 - Key Personnel..................................................9
Article 21 - Termination...................................................10
Article 22 - Governing Law.................................................10
Article 23 - Arbitration/Disputes..........................................10
Article 24 - Audit.........................................................11
Article 25 - Indemnity Against Patent Infringement.........................11
Article 26 - Limitation of Liability.......................................11
Article 27 - Insurance and Indemnification.................................11
Article 28 - DASA Employee Injury..........................................11
Article 29 - Warranty......................................................12
Article 30 - Relationship of Parties.......................................13
Article 31 - Manned Space Flight Item......................................13
i
3
Article 32 - Order of Precedence...........................................13
Article 33 - Technical Data................................................13
Article 34 - Intellectual Property Rights..................................14
Exhibit A: Statement of Work (SOW) for the SPACEHAB Integrated Cargo
Carrier (ICC) Integration and Operation
Exhibit B: SPACEHAB Furnished Equipment (SFE)
ii
4
THIS CONTRACT is by and between SPACEHAB, Inc. with an address at 0000 Xxxxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, (hereinafter referred to as
"SPACEHAB, Inc." or "SHI") and Daimler-Benz Aerospace AG,
Raumfahrt-Infrastruktur, Postfach 10 59 09, 28059 Bremen (hereinafter referred
to as "DASA"). The parties hereby agree as follows:
Article 1 - Entire Agreement
This Contract, all exhibits and other documents incorporated herein by
reference, whether or not attached hereto, constitute the complete and exclusive
statement of the Contract between the parties hereto. This Contract supersedes
any previous understanding or agreement between SHI and DASA (oral or written)
with respect to the subject matter hereof. Further, this Contract constitutes a
definitization of Letter Contract SHB98006 dated 17 April 1998.
Article 2 - Definitions
A. The term "DASA" shall mean Daimler-Benz Aerospace AG - Space
Infrastructure - .
B. The terms "General Agreement," "Basic Agreement," "Basic Terms and
Conditions," "Agreement" and "Contract" shall mean this Contract and
shall be deemed to include all exhibits, specifications, drawings, or
other documents incorporated herein by reference.
Article 3 - Scope of Work
A. Mission STS-96
XXXX is the prime Contractor responsible for performance of all work
set forth in this Contract, including work to be performed by any
subcontractor.
DASA shall perform the work identified in Exhibit A, "SPACEHAB
Integrated Cargo Carrier (ICC) Integration and Operations Contract
Statement of Work (SOW)" as far as relevant for STS-96, enclosed herein
and made a part hereof.
B. Future Missions
In accordance with the Statement of Work requirements herein, it is
intended that DASA will under separate contracts perform the
Integration and Operations of up to nine additional option missions of
the SPACEHAB ICC aboard the Space Shuttle through the year 2003. These
options may include active payloads, as well as I&O for a deployed
version of the Unpressurized Cargo Pallet (UCP) for operations onboard
the International Space Station (ISS).
XXXX's role as preferred provider of ICC I&O services for future
missions is dependent on NASA approval and satisfactory performance of
the I&O task for the mission STS 96.
1
5
Article 4 - Period of Performance
XXXX shall perform the work called for under this Contract in accordance with
the agreed to Statement of Work as specified in Article 3 herein, including
preparation and submission of all reports, during the period of performance
beginning 11 February 1998, and continuing through 30 June 1999, and as may be
extended by mutual agreement.
Article 5 - Contract Amount
A. Mission STS-96
1. General. This is a Cost Plus Incentive Contract. The following
estimated cost and nominal fee is established for the effort
required by the Contract for services as specified in
Statement of Work defined in Article 3.A. above:
*Total Cost: $ 2,117,765
Nominal Fee: $ 168,816
Total Contract Price: $ 2,286,581
2. Cost and Nominal Fee: The Cost and Nominal Fee of 10%
specified in section 1. above are subject to adjustment if the
contract is modified in accordance with Article 16 below.
The *Total Cost includes an amount of $249,608 for travel
expenses plus 5% overhead. Dasa will charge only economy class
for travel. Also included is an amount of $180,000 for
services provided by ASI. This amount includes a fixed fee and
is not subject to the incentive scheme. Dasa does not charge
overhead or profit on this amount.
3. Incentive Scheme. If the Actual Cost incurred under this
contract is higher (overrun) or lower (under-run) than the
Total Cost as agreed in accordance with section 1 and 2 here
above, then the Seller shares the cost of any overrun or
under-run as follows:
a. In the case of a cost overrun, the Seller shall get
reimbursement of only fifty (50) percent of the cost
above Total Cost until the nominal fee is reduced to
an actual fee of two (2) percent of the Total Cost.
In case of a cost overrun above this limit, the
Seller is entitled to full reimbursement of the cost
for any additional effort but with no fee.
b. In the case of a cost under-run, the Seller is
entitled to an additional fee representing fifty (50)
percent of the difference between Actual Cost
incurred and Total Cost as agreed until the nominal
fee is increased up to sixteen (16) percent of the
Total Cost.
4. Fees Payable. The Buyer will pay the nominal fee of ten (10)
percent based on the monthly invoices of Seller, except for
travel cost and ASI activities, until the amount of Total Cost
is reached or the contract work completed with cost under-run.
Any adjustment of the fee in accordance with the incentive
schedule (see section 3. above) will be made thereafter.
2
6
B. Future Missions. For future missions, the contract price will be
determined as follows:
1. In case the complexity of the integration & operations task
for an executed option mission is the same as for the STS-96
mission, and, similar to the STS-96 mission, the executed
option mission is the only DASA ICC integration activity
on-going during the period of performance, the same contract
price, excluding any costs and fees allocated to process
development, will apply.
2. In case an option mission is added which results in
overlapping of integration schedules and therefore sharing of
fixed costs between mission integration and operations
efforts, the contract price for the additional mission will be
reduced accordingly.
3. In case the complexity of the integration of operations task
for an executed option mission is increased, the additional
required effort will be agreed between Xxxxx and Seller and
the contract price will be increased accordingly.
4. In any case, an adjustment will be made to the reference price
of mission STS-96 which reflects the rate and overhead
structure of DASA valid for the period of performance of the
I&O task for the respective mission.
5. The incentive scheme agreed for mission STS-96 will be valid
also for the future missions.
Article 6 - Payment
A. DASA shall submit invoices monthly for the payment of actual costs
incurred plus the Nominal Fee of 10%.
Invoices shall segregate costs into the following categories:
Sustaining
- Labor
- Material and Sub-contracted Services
- Travel
Mission-unique (for each individual mission)
- Labor
- Material and Sub-contracted Services
- Travel
Process Development
- Labor
- Capital Equipment
Such invoices shall be submitted to SHI at:
SPACEHAB, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
3
7
Payment will be made by or on behalf of SPACEHAB, Inc. to:
Exhibit B - Wire Transfer Instructions
Account of Daimler Benz Aerospace-RI
Account No. 1435264741
At Xxxxxx Landesbank
BLZ 290 500 00
Such invoices shall be due and payable by SHI, 30 days after receipt of an
invoice. If any such invoice remains unpaid 45 days after receipt of such
invoice, DASA shall have the right to stop work under this Contract. If such
invoice continues to remain unpaid 60 days after receipt of such invoice, DASA
may at its option, consider SHI to have breached this Contract and may pursue
remedies as provided by law.
Article 7 - Limitation of Funds
A. The sum of $ 2,286,581 is presently available for payment and is
allotted to this contract covering the period of performance through 30
June 1999.
X. XXXX agrees to use reasonable efforts to perform, or have performed,
the work on this contract up to the point at which the total amount
paid and payable by XXX under the contract approximates but does not
exceed the amount specified in paragraph (A). Unless otherwise agreed
in writing, XXX shall not be obligated to reimburse DASA for costs
incurred in excess of the total amount allotted by SHI to this contract
during the stated period of performance.
C. Upon expenditure of 85% of allotted funds set forth in paragraph (A),
DASA shall notify SHI in writing as to the estimated amount of
additional funds required for the timely performance of the contract.
Such notice shall specify any additional funds and period of
performance required.
D. If, after the notification called for in Paragraph (C) above,
additional funds are not allotted to this contract, DASA may request
that this contract be terminated, in accordance with the provisions of
the Terminations Clause of this contract, and SHI shall comply.
X. XXXX is not obligated to continue performance under this contract
(including actions under the Termination clause of this contract) or
otherwise incur costs, which when added to the applicable fee would be
in excess of the amount then allotted to the contract by SHI until SHI
notifies DASA in writing that the amount allotted has been increased.
Article 8 - Supplies/Services and Delivery Schedule
A. The scope of work to be performed under this Contract shall include,
the provision of all labor, materials, services, and equipment
necessary to perform the work as set forth in Exhibit A, SPACEHAB
Integrated Cargo Carrier Integration and Operations Contract Statement
of Work.
B. In addition to invoicing, the Seller shall submit a cost compliance
report each month describing any obligations incurred during the month
prior and segregating those obligations into cost categories identical
to those appearing on invoices.
In order to provide timely reporting of actual expenditures, the cost
compliance report may be manual and unofficial. Any significant
discrepancies between cost compliance reports and actual invoices
should be explained either on the invoice when billed, or on the cost
compliance report for the month corresponding to the invoice in which
the discrepancy becomes apparent.
4
8
Significant discrepancies between the manual cost compliance report and
any request for payment must be clarified before the payment will be
issued.
Along with or in addition to the cost compliance report, Seller shall
submit each month to the SPACEHAB project manager a name-list of those
persons who performed chargeable work to this contract in the month
prior. The list shall include each individual's name, phone number and
task or function.
Article 9 - Title and Delivery
The point of delivery for any hardware required shall be Titusville, Florida
USA. The point of delivery for any data required shall be SPACEHAB, Inc.,
Vienna, VA.
Article 10 - Packaging and Marking
Packaging and marking for shipment of all items ordered hereunder shall be in
accordance with good commercial practice, and adequate to ensure both acceptance
by common carrier and safe transportation at the most economical rate(s).
Article 11 - Inspection and Acceptance
The place of final inspection and acceptance for the services and deliverable
hardware called for under this Contract shall be SHI's facility at Titusville,
Florida, or other designated place(s) of performance. The place of inspection
and acceptance of all deliverable reports and documentation shall be at SHI,
Vienna, VA with copy to SHI Houston, Texas and SHI Cape Canaveral, FL as
specified by SHI.
Article 12 - Place of Performance
DASA shall perform the work under this contract at its facility located in
Bremen, Germany, at SHI's facility located in Houston, Texas or Titusville,
Florida, and at any other locations within the USA or Germany as may be
required.
Article 13 - Items, Equipment, Property, Services to be Furnished by SPACEHAB,
Inc. and/or the Government on a "No Charge" Basis
A. SHI and/or the Government shall furnish to DASA, for use in connection
with and under the terms of this contract on a "no-charge" basis, the
SHI and/or Government owned equipment, property, items, services, etc.
which are suitable for the intended use. SPACEHAB Furnished Equipment
(SFE) to be provided is identified in Exhibit B.
B. Out of tolerance conditions, inadequacies, and delivery delays in SHI
and/or Government supplied items identified herein will be the basis
for a DASA Contract Change proposal and subsequent Contract amendment
reflecting the cost, fee, schedule, and technical impact of defective
or late delivery of SHI and/or Government supplied items.
5
9
C. The applicability of NASA FAR 52.245-5 Government Property is agreed to
apply to Government furnished or owned equipment only and does not
apply to purchases under this Contract since it is understood that
title to all items provided under this Contract would vest with
SPACEHAB, Inc.
D. SPACEHAB Furnished Equipment as identified in Exhibit B will include
the following information:
- Functional capabilities
- Interface definition
- Environmental constraints
- Mechanical characteristics (dimensions, weight, c.g., etc...)
- Electrical power requirements (peak, start-up/in-rush,
profile, ...)
- Special requirements (commanding, downlink,...)
- Verification data (including safety data)
- Operations requirements and procedures
Maintenance/repair of SFE that was designed and built by SHI will be
the responsibility of SHI. DASA shall be responsible to report hardware
failures immediately to SHI via Material Review Record (MRR). To do
this, XXXX will perform trouble shooting to locate problem to, but not
within, the SFE component. DASA support to SHI for trouble shooting
within the SFE component and shipping or repairing the component will
be authorized by task directive and where necessary funded under a
contract change. DASA shall maintain configuration control of the SFE.
At turnover to DASA, SFE hardware and corresponding documentation shall
be identified by part number including revision level (and serial
number when appropriate). Documentation shall be placed under DASA
documentation control. Changes/revisions post turnover (to DASA) shall
be accompanied by the appropriate revised documentation.
Article 14 - Exchange of Technical Information
During the term of this Contract, SHI and XXXX, to the extent of their right to
do so, agree to exchange all such technical and management information as may
reasonably be required for each to perform its obligations hereunder. To the
extent that proprietary information of either party is disclosed, such
information or data which is (i) submitted in writing, must be designated by an
appropriate stamp, marking or legend thereon to be of proprietary or
confidential nature, or (ii) orally submitted, must be identified as proprietary
or confidential prior to disclosure and the disclosing party notifies the
receiving party, in writing, specifically identifying any such proprietary or
confidential information so orally submitted within thirty days after such oral
submission. Notwithstanding termination or expiration of this Contract, each
party will keep in confidence and prevent the disclosure of all such proprietary
information and data, whether technical or commercial, to any third party.
Neither party shall be liable for disclosure of any such proprietary information
or data, if such information:
A. Was in the public domain at the time it was disclosed, or later becomes
part of the public domain other than throughout the action of the party
receiving it; or
B. Was known to the party receiving it at the time of disclosure; or
C. Is disclosed with the prior written approval of the other party; or
6
10
D. Is disclosed by the party providing the same, to others, on a
non-restricted basis; or
E. Is disclosed inadvertently despite the exercise of the same degree of
care that the receiving party takes to preserve or safeguard its own
proprietary information; or
X. Xxxxxxx known to the receiving party from a source other than the
disclosing party without breach of this Section by the receiving party;
or
G. Is disclosed one (1) year after expiration or termination of this
Contract; or
H. Is disclosed to a government agency for certification or export license
purposes, taking all reasonable precautions to prevent further
disclosure by such agency.
Article 15 - Excusable Delays
Except for default of subcontractors at any tier, either party shall not be in
default because of any failure to perform this Contract under its terms if the
failure arises from causes beyond the control and without the fault or
negligence of DASA. Examples of these causes include but are not limited to are
(1) acts of God or of the public enemy, (2) acts of Government in either its
sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6)
quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually
severe weather. In each instance, the failure to perform must be beyond the
control and without the fault or negligence of DASA. "Default" includes failure
to make progress in the work so as to endanger performance.
DASA shall not be in default, if the failure to perform is caused by the failure
of a subcontractor at any tier to perform or make progress, and if the cause of
the failure was beyond the control of both DASA and subcontractor, and without
fault or negligence of either, unless (1) DASA knew of other sources to obtain
the subcontracted supplies or services from to meet schedule; (2) SHI ordered
DASA in writing to purchase these supplies or services from the other source;
and (3) DASA failed to comply reasonably with this order.
If SHI determined that any failure to perform results from one or more of the
causes above, the delivery schedule shall be revised, subject to the rights of
SHI under the Termination Clause of this Contract.
Article 16 - Changes
A. Wherever in the SOW an activity is specified "as required", "as
necessary" or "if required", the amount of work actually to be
performed will be agreed between the SHI and Dasa-RI mission manager on
a case by case basis. If the amount of work actually to be performed
exceeds the effort allocated to that activity in the staffing profile,
a formal change of the contract is required in accordance with the
procedure agreed here below.
X. XXX may at any time, by written order, and with such concurrence to not
be unreasonably withheld from DASA, make changes within the general
scope of this Contract in any one or more of the following:
(1) Description of services to be performed.
(2) Time of performance (i.e., hours of the day, days of the week,
etc.).
7
11
(3) Place of performance of the services.
(4) Drawings, designs, or specifications.
(5) Method of shipment or packing of supplies.
(6) Place of delivery.
(7) Types and amounts of SHI and/or Government-Furnished Property
to be provided.
C. If any such change causes an increase or decrease in the estimated cost
of, or the time required for, performance of any part of the work under
this contract, whether or not changed by the order, or otherwise
affects any other terms and conditions of this contract, SHI shall make
an equitable adjustment in the (1) estimated cost, delivery or
completion schedule, or both; (2) amount of fee; and (3) other affected
terms and shall modify the contract accordingly.
X. XXXX shall assert its right to an adjustment under this clause within
60 days from the date of receipt of the written order. However, if XXX
decides that the facts justify it, XXX may receive and act upon a
proposal submitted before final payment of the contract.
E. Failure to agree to any adjustment shall be a dispute under the
Disputes Clause. However, nothing in this clause shall excuse DASA from
proceeding with the contract as changed.
F. Notwithstanding the terms and conditions of paragraphs (a) and (b)
above, the estimated cost of this contract and, if this contract is
incrementally funded, the funds allotted for the performance of this
contract, shall not be increased or considered to be increased except
by specific written modification of the contract indicating the new
contract estimated cost and, if this contract is incrementally funded,
the new amount allotted to the contract. Until this modification is
made, DASA shall not be obligated to continue performance or incur
costs beyond the point established in the Limitation of Funds Clause of
this Contract.
Article 17 - Amendments
Neither this Contract, nor any term or condition thereof, shall be amended or
changed in any manner except by an instrument in writing hereto, executed by
both parties acting through their duly authorized representatives.
Article 18 - Stop Work Orders
SHI may, at any time, by written order to DASA, require DASA to stop all, or any
part, of the work called for by this contract for a period of up to 90 days
after the order is delivered to DASA, and for any further period to which the
parties may agree. The order shall be specifically identified as a stop-work
order issued under this clause. Upon receipt of the order, DASA shall
immediately comply with its terms and take all reasonable steps to minimize the
incurrence of costs allocable to the work covered by the order during the period
of work stoppage.
8
12
Article 19 - Notices
A. Except as herein specifically provided otherwise, all notices, reports,
and other communications hereunder shall be given in writing either by
personal delivery, by first class mail, or by electronic transmission,
addressed to the respective parties as specified herein below.
B. The date upon which any such communication is personally delivered or,
if such communication is transmitted by mail or by electronic
transmission, the date upon which it is received by the addressee,
shall be deemed to be the effective date of such communication.
C. Each party shall promptly advise the other in the event of any change
in their respective addresses.
D. The SHI personnel authorized to issue written orders, in accordance
with the Changes Clause, are X.X. Xxxxxx or Xxxxx Xxxxxxxx.
The SHI personnel authorized to give technical direction are M. E.
Bain, or X. Xxxx Xxxxxxx.
E. The DASA personnel authorized to accept writtten orders, negotiate
changes or sign amendments are:
- Xxxxxx Xxxx for contractual matters and
- Xxx Xxxx for technical and programatical matters
F. The addresses of SHI and DASA, for the purpose of paragraph A above,
are as follows:
FOR COMMUNICATION TO SPACEHAB, INC.
SPACEHAB, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx with copies to M.E. Bain.
When transmitted by mail: Same as above
When transmitted by electronic transmission: Fax Number: (000) 000-0000
FOR COMMUNICATION TO DASA
Daimler-Benz Aerospace AG
- Space Infrastructure -
Postfach 10 59 09
D-28059 Bremen
Attention: Xxxxxx Xxxx with copies to Xxx Xxxx
When transmitted by mail: Same as above
When transmitted by electronic transmission: Fax Number: (0000) 000-0000
9
13
Article 20 - Key Personnel
The personnel listed below are considered essential to the work being performed
under this contract. Before removing, replacing, or diverting any of the listed
personnel, DASA shall notify SHI in advance, and shall provide rationale
including identification and qualifications of candidate replacement, and shall
not remove, replace or divert such personnel without SHI's written consent,
which shall not be unreasonably withheld. In such event, the list of personnel
shall then be amended accordingly.
Key Personnel Title/Position
------------- --------------
X.X. Xxxxxxx Mission Manager
X. Xxx Xxxxxx Team Lead
X. Xxxxxxxx Mission Analytical Integration and Payload Coordination
Article 21 - Termination
X. XXX may terminate this Contract at any time by written notice, in whole
or in part, if SPACEHAB, in its sole discretion, determines that a
termination is in its own best interest. SHI shall terminate by
delivering to the Contractor a Notice of Termination specifying the
extent of termination and the effective date.
B. In the event of a termination, SHI will reimburse DASA for all costs
incurred, including applicable fee and termination costs. For purposes
of the Termination Clause, incurred costs includes all outstanding
commitments not yet paid and for delivery of all hardware, software and
services, whether complete or incomplete, identified herein, to SHI.
Termination costs are those actual and reasonable costs incurred in
terminating the Contract including usual and customary severance pay
and other labor costs in the ordinary course of business or as
otherwise required by law, storage and protection costs, and costs of
settlement and termination of subcontracts.
C. SHI may terminate this contract if DASA fails to deliver the goods or
perform the services required by this contract within the time
specified and any extension thereto granted by SHI.
D. The minimum value of the subcontract with ASI is $180,000. In the event
that this task, or the entire contract, is terminated by SHI, without
default of ASI, DASA will be entitled to the remainder (minimum
contract value minus the actual payments to date of termination).
Article 22 - Governing Law
This agreement shall be governed by and interpreted in accordance with the law
of the Commonwealth of Virginia.
Article 23 - Arbitration/Disputes
Disputes arising out of the interpretation or execution of this contract which
cannot be resolved by negotiation shall, at the request of either Party, (after
giving 30 days notice to the other Party) be submitted to arbitration. The
arbitration tribunal shall sit in Vienna, VA. Disputes shall be finally settled
pursuant to the arbitration rules of the International Chamber of Commerce. The
parties hereby agree that any arbitration findings hereunder may be enforced in
any U.S. Federal Court in Washington, D.C. or
10
14
Virginia and the parties hereby consent to the jurisdiction of such courts for
such purpose. The decision to submit a dispute shall not excuse either party
from the timely performance of its obligations hereunder which are not the
subject matter of the dispute. Further, if the lack of resolution of the matter
in dispute will adversely impact the timely completion of preparation for launch
activities, DASA and XXX will perform the matter in dispute in the manner
determined by XXX, within the framework of this Contract and without prejudice
to the final resolution of the matter in dispute.
Article 24 - Audit
X. XXXX will maintain accurate records of labor hours expended,
subcontract xxxxxxxx and travel costs incurred by Cost Charge Number.
Such records shall be made available for inspection by an independent
certified public accountant retained by SHI during normal business
hours for a period of three (3) years after completion of this
Contract.
X. XXXX's books, records, documents and other supporting data shall be
made available to the independent certified public accountant
responsible for auditing DASA on behalf of DASA and ESA (Price Auditing
Office of the City of Bremen) for inspection and audit as reasonably
required in conjunction with the negotiation of any changes hereunder,
including termination claims.
C. In case of any dispute, the parties agree to continue Contract
performance pending resolution.
Article 25 - Indemnity Against Patent Infringement
X. XXXX shall indemnify SHI against any liabilities or losses which SHI
may be required to pay in the case of any actual or alleged
infringement of any United States patent or any negotiation or
litigation based thereon, with respect to any products purchased
pursuant to the terms of this Contract unless such products are made to
a specific and detail design furnished by SHI which is not a
modification of a DASA design. Such liabilities or losses (i) include:
(a) counsel fees, (b) cost of replacing any infringing product with a
suitable non-infringing substitute or of otherwise curing any
infringement, but (ii) do not include any losses by SHI due to loss of
use, at any time, of equipment or component utilizing any of said
products which are the subject of any actual infringement.
B. With respect to any such actual or alleged patent infringement for
which DASA is obligated to indemnify SHI: (i) DASA shall, as soon as
practicable, report to SHI promptly an din reasonable written detail,
each notice of claim against DASA of patent infringement; and (ii) SHI
will notify DASA as soon as practicable after receipt by SHI of
appropriate notice of any charge of infringement or commencement of any
suit or action for infringement against SHI in either case, DASA shall
have the option to (a) conduct negotiations with the party or parties
charging infringement or (b) assume, conduct and control the defense of
any suit or action of infringement against DASA or SHI. In the event
DASA does not pursue either option, then SHI shall have the option to
conduct such negotiations and defense without expense or liability to
SHI as provided under Paragraph A. above.
Article 26 - Limitation of Liability
In no event, shall DASA be liable under any legal or equitable theory (including
but not limited to contract, tort, negligence, or strict liability) for any
incidental or consequential damages, including but not limited to damages for
lost profits, lost sales, or loss of use of property.
11
15
Article 27 - Insurance and Indemnification
Upon delivery and final acceptance by SHI of an Integrated Cargo Carrier, SHI
shall indemnify and save harmless DASA, its subcontractors and any officers,
directors, employees, and agents of any of them form any liability and expense
on account of loss of damage to the property of third parties (including the US
Government) or bodily injury to any persons, including death, caused by or
resulting from the use of the goods furnished hereunder and/or arising from the
provision of services under this Contract excepting only such loss, damage, or
injury caused by the indemnities willful misconduct, and SHI shall defend any
suits or other proceedings brought against DASA and its subcontractors and the
officers, directors, employees, and agents of any of them on account thereof an
shall pay all expenses and satisfy all judgments which may be incurred or
rendered against them or any of them in connection therewith. DASA shall give
SHI prompt written notice of any claim of such loss, damage, or injury and shall
cooperate with SHI and its insurers in every reasonable way in defending against
such claim. SHI shall obtain insurance, naming DASA as an additional named
insured, against such liabilities to third parties as are referred to in this
paragraph.
DASA shall indemnify SHI against any liability, loss, claim, and/or proceeding
in respect of personal injury to and/or death of any person, or loss or damage
to property, arising out of the performance of the Contract; but only if the
same is due to the negligent acts or omission of DASA, its employees or agents;
or any subcontractor, its employees or agents.
Article 28 - DASA Employee Injury
DASA shall indemnify and hold harmless SHI, its officers, agents, and employees
from any liability, loss or damage they may suffer as a result of death or
injury to any DASA employees connected with or related to the performance of
Contract work whether or not on SHI's premises, and which results wholly or
partly from the negligence of DASA, its officers, agents, or employees. XXX
shall indemnify DASA against any liability, loss, claim, and/or proceeding in
respect of personal injury to and/or death of any person, or loss or damage to
property, arising out of the performance of the Contract; but only if the same
is due to the negligent acts or omission of SHI, its employees or agents; or any
subcontractor, its employees or agents.
Article 29 - Warranty
A. DASA hereby warrants to SHI that all deliverables furnished under this
contract shall be free from defects in workmanship for a period of one
(1) year from the date of their acceptance. The cost of and associated
fees for remedies of any defects shall be paid pursuant to the payment
provisions of this contract. SHI shall notify DASA in writing, via fax
or any equivalent means within 48 hours of any defects found after
acceptance of the products. DASA's liability under this clause shall
not extend:
1. to defects arising form the misuse of the items after
acceptance.
2. to defects in materials, assemblies or other supplies issued
by SHI for incorporation therein, provided always that DASA
shall have properly exercised its duties as custodian of such
issues and shall have incorporated them in accordance with the
requirements of the contract.
12
16
B. Where defects in items are remedied by repair under this warranty, the
repaired item shall be warranted for the remainder of the unexpired
warranty. Where defective items are replace by new ones the full
guarantee period stipulated in the Contract shall apply to such
replacement items form the date of their acceptance.
Article 30 - Relationship of Parties
This Contract is not intended by the parties to constitute or create a joint
venture, partnership or formal business organization of any kind. The rights and
obligations of the parties shall be only those expressly set forth herein. The
relationship established by this Contract is exclusively that of seller and
buyer.
Article 31 - Manned Space Flight Item
DASA shall include the following statement in all subcontracts and purchase
orders placed by it in support of this Contract, without exception as to amount
or subcontractual level:
For use in manned space flight; materials, manufacturing, and
workmanship of highest quality standards are essential to astronaut
safety.
If you are able to supply the desired item with a higher quality than
that of the items specified or proposed, you are requested to bring
this fact to the immediate attention of the purchaser.
Article 32 - Order of Precedence
In the event of any conflict between Contract and the Statement of Work, the
contract shall take precedence.
Article 33 - Technical Data
All technical data produced and paid for, of whatever type or kind, under this
Contract shall be the property of SHI.
13
17
Article 34 - Intellectual Property Rights
All worldwide Intellectual Property (IP) rights (including but not limited to
patents, copyrights, trademarks, service marks and trade secrets) created and
paid for under this contract shall be the sole property of SPACEHAB. DASA-RI
agrees to reasonably assist SPACEHAB in securing such rights through patent,
copyright and trade name applications in various worldwide jurisdictions. All
intellectual property (IP) utilized in the performance of this contract shall
remain the exclusive property of the party(s) who had the rights in the IP prior
to this contract.
IN WITNESS WHEREOF, the parties have caused their duly authorized representative
to execute this Contract in duplicate.
DAIMLER-BENZ AEROSPACE AG SPACEHAB, INC.
- SPACE INFRASTRUCTURE -
By: By:
------------------------------- --------------------------------
Name: X. Xxxx X. Xxxx Name: Xxxxx Xxxxxxxx
------------------------------- --------------------------------
Title: Project Mgr. Contracts Mgr. Title: Contracts Administrator
------------------------------- --------------------------------
Date: 30 June 1998 Date: 30 June 1998
------------------------------- --------------------------------
14
18
EXHIBIT B
I. SPACEHAB FURNISHED EQUIPMENT (SFE), DATA AND SERVICES
1. SPACEHAB - ASTROTECH Payload Processing Facility
- Environmental Controlled Integration Area
- Logistics Support by ASTROTECH, customs clearance,
transport arrangement, transports
- Standard Facility Handling Equipment
- Support Personnel assisting in crane operations and
facility support tasks
- Adequate Storage areas for flight hardware and GSE
2. UCP - Unpressurized Cargo Pallet (UCP) including GSE
3. Keel Yoke Assembly (KYA) including GSE and Transport Container
4. Strela - ICC Mounting Hardware
5. SPACEHAB - OCEANEERING SPACE SYSTEMS TRANSIT CONTAINER
(XXXXX-TC) and associated GSE
- XXXXX Geometry
- Verified Models
- Phase II Safety Data*
- Payload Mass Properties
- Training Mock-up incl. ICC Standard Interface Plates
- Phase III Safety Data*
- XXXXX Transit Container
- XXXXX - TC Attach Hardware
6. Fully operational ICC Transport GSE
15
19
II. GOVERNMENT FURNISHED EQUIPMENT & DATA (GFE)
1. Strela Crane (including operator post, FGB adapter, safety
ring, boom and Strela adapter plates) and associated GSE
- Structural/Thermal Math Models
- Phase II Safety Data*
- Design Mass Properties
- Design Documentation
- Training Mock-up (Strela on adapter plates)
- Test Verified Loads Models
- Phase III Safety Data*
- Strela Flight Hardware
- Strela-ICC Mounting Hardware attached to UCP
2. ORU Transfer Device (OTD) and associated GSE
- Payload Geometry
- Verified Models
- Phase II Safety Data*
- Training Mock-up incl. Payload-Unique ICC Interface
Plates
- Phase III Safety Data*
- OTD & Transition Plate
- Payload-unique ICC Interface Plates
3. EVA Support Equipment/ Trainer
- EVA-MSE
- ICC-STIPLs (EVAS attach hardware)
- Fully configured ICC Training Mock-up (including
Cargo Mock-ups)
* (ISS formatted data packages)
All SFE/GFE is expected to be made available at or before the date(s) specified
in the latest agreed to ICC I&O Master Schedule.
16
