Exhibit 10.1
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| CONTRACT FOR |
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| DESIGN, DEVELOPMENT AND SUPPLY OF SATELLITE BASE TRANSCEIVER |
| SUB-SYSTEM ("S-BTS") |
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| BETWEEN |
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| MOBILE SATELLITE VENTURES LP |
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| AND |
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| XXXXXX NETWORK SYSTEMS, LLC. |
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This is a Contract between Xxxxxx Network Systems, LLC. a Delaware limited
liability company (hereinafter referred to as the "Contractor") with its
principal place of business at 00000 Xxxxxxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
XXX, and Mobile Satellite Ventures LP, a limited partnership organized under the
laws of Delaware with its principal place of business at 00000 Xxxxxxxxx Xxxx.,
Xxxxxx, XX 00000 XXX (hereinafter referred to as "MSV"). As used herein,
Contractor and MSV may each be referred to individually as a "Party" and
collectively as the "Parties".
The effective date of this Contract ("EDC") is October 11, 2006.
Article 1. Scope of Work
A. The Contractor shall design, develop, manufacture, deliver, install, test
and implement the Satellite Base Transceiver Subsystem ("S-BTS") (collectively
"the Works") in accordance with all the requirements, terms and conditions of
this Contract, and in accordance with a Statement of Work, an S-BTS Technical
Specification and a Price and Payment Plan to be agreed upon and entered into
contemporaneous with this Contract.
B. The Contract the Statement of Work and the S-BTS Technical Specification
sets out the requirements to be performed by Contractor to implement the Works.
Article 2. Delivery by Contractor
A. The items to be delivered by Contractor pursuant to this Contract
("Deliverable Items") shall be as described in the Statement of Work.
B. The delivery locations shall be as defined in the Statement of Work and
all Deliverable Items shall be delivered in accordance with Article 3 hereto,
entitled Performance Schedule and in accordance with the Statement of Work and
the S-BTS Technical Specification.
C. Any change to the delivery locations specified in the Statement of Work
shall constitute a contract change in accordance with Article 22 hereto,
entitled Changes, unless the new delivery locations are also within the
Continental U.S. or for those in Canada, are in an area in proximity to, or
equivalent to those specified in the Statement of Work.
Article 3. Performance and Delivery Schedule
A. The Work, as defined in Article 1 hereto, entitled Scope of Work shall be
performed in accordance with the Statement of Work.
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B. The Deliverable Items, as defined in Article 2 herein, and set out in the
Statement of Work, shall be delivered on or before the corresponding delivery
dates and at locations specified in the table below (the "Delivery Schedule")
---- ---------------------- ------------------------------ ---------------------
Item Description Delivery Date Delivery Location
---- ---------------------- ------------------------------ ---------------------
1 Deliverable
Documentation as per Per Statement of Work, As per Statement of
Statement of Work, Section 9.0 Work,
Section 9.0
---- ---------------------- ------------------------------ ---------------------
2 S-BTS Each Shipped Per Statement Each as per
of Work, Section 4.0 - EDC + Statement of Work,
30 months
---- ---------------------- ------------------------------ ---------------------
3 S-BTS Spares Per Statement of Work, Spares Depot at
Section 4.0 - EDC + 33 months Contractor's Factory
---- ---------------------- ------------------------------ ---------------------
C. Contractor shall also comply with the milestone schedule set forth in the
Statement of Work (Milestone Schedule"), Section 4.0, which includes "Key
Milestones" identified in Article 13.E in addition to the Deliverable Items
detailed above.
D. Delivery of each Deliverable Item shall occur upon acceptance of such item
in accordance with Article 7 (Acceptance).
E. If Contractor either fails to achieve, or Contractor fails to make
sufficient progress such that MSV has a reasonable basis to believe that
Contractor will fail to achieve, a portion of the Work upon completion of which
a payment is to be made in accordance with the Price and Payment Plan ("Payment
Milestones") on or before its scheduled date for completion as set forth in the
Price and Payment Plan ("Milestone Date"), Contractor must develop and submit a
recovery plan within ten (10) Business Days of MSV's request, demonstrating its
ability to complete its obligations by the Milestone Date, or within a
reasonable time so as to maintain all subsequent Milestone Dates.
F. Contractor acknowledges that if Contractor fails to meet the Key Milestone
dates set forth in Article 13, MSV will incur substantial damages that will be
difficult to calculate. Accordingly, if Contractor fails to complete a Key
Milestone within thirty (30) calendar days after the scheduled date for
completion of such Key Milestone, then Contractor shall pay liquidated damages
in accordance with Article 13.
Article 4. Price
A. The total contract value shall be a firm fixed price of United States
Dollars $42,995,714, (the "Purchase Price") and may be amended from time to time
in accordance with this Contract. For the avoidance of doubt, the Purchase Price
shall not change based on MSV's selection of an air-interface at Preliminary
System
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Design Review ("PSDR") and such air-interface selection shall not be considered
an MSV requested/required change per Article 22 (Changes) herein. For the
avoidance of doubt the Parties will follow the process in Section 2.0(5) of the
Statement of Work and if MSV selects any air-interface other than those
evaluated, such air-interface shall be considered an MSV requested change per
Article 22 (Changes) herein.
Notwithstanding the foregoing, any work performed by HNS beyond the scope of
work as set out in the Statement of Work, Section 2.0(2) and any work to be
performed under Article 7 G. hereof, will be on a Time and Materials basis per
the rates set forth in the Price and Payment Plan.
B. Except as otherwise expressly provided in this Contract the Purchase Price
is not subject to any escalation or to any adjustment or revision. The Purchase
Price includes on-going design, development, manufacturing, and testing of all
Deliverable Items, as well as the installation, integration and implementation
of the S-BTS and the provision of all Deliverable Documentation, packing and
transport of the components of the S-BTS to their designated locations, transit
insurance and such other insurance as required by Article 24 (Contractor
Insurance Requirements), all in accordance with the terms and conditions of this
Contract.
C. If Contractor provides similar equipment to any third party at prices
lower than the prices charged to MSV on similar business terms, quantities,
specifications, delivery schedules and terms and conditions taken as a whole
then MSV's prices shall be appropriately adjusted to provide the benefit of such
lower prices. Such adjustment shall be retroactive to the first date on which
the lower charges to any such third party became effective. Upon request,
Contractor's chief financial officer shall certify to MSV in writing that
Contractor is in compliance with Contractor's most favored customer obligations
and shall provide the information reasonably requested by MSV to verify such
compliance.
Article 5. Taxes and Duties
A. The Purchase Price referred to in Article 4 (Price) hereof, is exclusive
of the following taxes, customs duties and charges with respect to the Work
provided hereunder: (i) any present or future Federal, State, Provincial, or
local sales, or use taxes (including U.S and Canadian sales or use taxes); (ii)
any other present or future excise, sales or use tax, or other charge or
assessment upon or measured by the gross receipts from the transactions provided
in this Contract; (iii) any customs duties whatsoever; and (iv) any present or
future property, inventory, or value-added tax or similar charge. MSV will pay
and discharge, either directly to the governmental agency or as billed by
Contractor, the foregoing taxes, duties and charges and all assessments and
other taxes with respect to the transactions provided in this Contract and all
deliverables and services provided hereunder (excluding any Federal, state,
local or foreign income taxes imposed upon Contractor). Where billed by
Contractor, the taxes shall be separately stated on the applicable invoice.
Without limiting the generality of the foregoing, the Purchase Price is net of
any non-US income taxes, or any withholding taxes in lieu of such income taxes.
Consequently, in the event that MSV is required by applicable local law to
withhold any amounts otherwise
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owing to Contractor, MSV will be obliged to "gross up" the actual purchase price
to include the amount of any such withholding tax such that the amount actually
payable to Contractor will be the Purchase Price.
Article 6. Payment Terms
A. The Purchase Price referred to in Article 4 (Price) hereof, shall be paid
by MSV in accordance with the Price & Payment Milestone Schedule, established in
the Price and Payment Plan and with the terms of this Article.
B. With respect to each amount specified in the Price & Payment Milestone
Schedule, Contractor shall submit an invoice to MSV when the corresponding
milestone event has been completed along with a certification from MSV that the
Milestone has been completed in accordance with the requirement of this
Contract. Each invoice shall contain or be accompanied by a written
certification from Contractor that the milestone event has been completed.
C. MSV shall pay each amount within thirty (30) days after MSV receives the
invoice and certification referred to in paragraph B. of this Article 6
provided, however, that if MSV reasonably concludes that the requirements for
such milestone event (as set forth herein) have not been fulfilled, then MSV
shall so notify Contractor in writing, including a description of MSV's basis
for asserting that the milestone event has not been fulfilled. In such event the
applicable payment shall not be made until within thirty (30) days after it has
been determined that the requirements for such milestone event have been
fulfilled.
D. All invoices directed to MSV shall be submitted in the original by
overnight courier to the attention of "Accounts Payable", and one (1) copy by
facsimile at the address set forth in Article 25 to the attention of: Director,
Contracts Administration.
E. In the event MSV fails to pay an undisputed amount within thirty (30) days
after the due dates specified in Article 6 C. Contractor shall be entitled to
apply a late payment charge, at an annual rate of the lesser of (i) the current
prime rate (or equivalent), as last quoted by The Wall Street Journal prior to
the due date of the payment, plus two percent (2%), or (ii) the maximum rate
allowed by applicable law, on the unpaid balance of the undisputed payment until
such amount is paid.
F. In the event Contractor fails to pay an undisputed amount to MSV when due,
MSV shall be entitled to interest at the Late Payment Interest Rate on the
unpaid balance of the undisputed payment until such amount is paid.
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G. All payments made to Contractor hereunder shall be in U.S. currency and
shall be made by electronic funds transfer to the following account:
Account of Xxxxxx Network Systems, LLC.
M&T Bank
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Article 7. Acceptance
A. All Deliverable Items shall be subject to acceptance of such items by MSV
in accordance with this Article 7 and Section 6.0 of the Statement of Work.
B. Acceptance shall be in accordance with the procedures specified in Section
6.0 of the Statement of Work entitled Integration and Testing Approach
("Acceptance Tests"). MSV shall notify Contractor of its acceptance or rejection
of the Works within ten (10) working days after delivery or, if applicable, upon
completion of the post-delivery acceptance tests. In the event that no such
notice is received by Contractor from MSV within ten (10) working day period,
the Work shall be deemed to be accepted by MSV.
C. The sole cause for the rejection of any Work by MSV shall be the failure
of such Works to comply with the acceptance criteria set out in the Contract,
including the Statement of Work. Any notice of rejection of the Work shall set
forth the provision(s) of the Statement of Work and/or the provision(s) of the
S-BTS Technical Specification, with which MSV contends the Work is not in
compliance.
D. Acceptance Test Procedure. Prior to conducting an Acceptance Test,
Contractor shall notify MSV in advance in order to permit MSV representatives to
be present at such Acceptance Test. If the Work fails to pass any portion of the
Acceptance Test, Contractor shall promptly re-perform the Works and/or redesign,
repair or replace any Deliverable Item as is necessary to correct the problem,
at which time the Acceptance Test, or sub-test thereof as the Parties agree is
appropriate, shall be repeated. The foregoing process shall be repeated as
necessary until the Acceptance Test has been successfully completed. Upon
completion of the Acceptance Test, Contractor shall provide MSV with a written
notification ("Certificate of Completion") stating that such system or
sub-system has passed the applicable Acceptance Test. Only upon MSV's signing of
the Certificate of Completion shall the specific system or sub-system Acceptance
Test be deemed completed.
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E. Factory Acceptance Testing. (i) Scope and Planning. As specified in the
Statement of Work, Contractor shall conduct Factory Acceptance Test (FAT) for
all equipment and software forming part of the Deliverable Items. Prior to the
performance of each Acceptance Test, Contractor shall provide MSV with an
acceptance test plan for MSV's approval. MSV shall approve such plan if it
determines that the test plan will demonstrate to MSV's satisfaction that the
Deliverable Items meet the Statement of Work, the Performance Specifications,
and the acceptance criteria outlined in the SOW, hereinafter referred to as the
"Approved Acceptance Plan". Contractor shall conduct all acceptance tests in
accordance with the Approved Acceptance Plan.
(ii) Full Compliance. Upon completion of each Acceptance Test, Contractor shall
provide MSV with written test results ("Acceptance Test Report"). If the
acceptance test results demonstrate the system's or subsystems' (as applicable)
compliance with the Statement of Work, Performance Specifications, and the
acceptance criteria, Contractor shall provide MSV with a Certificate of
Completion stating that such system or sub-system has passed the applicable
Acceptance Test. Only upon MSV's signing of the Certificate of Completion shall
the specific system or sub-system Acceptance Test be deemed completed. Should
MSV not respond to a Certificate of Completion submitted by Contractor for
approval of the relevant acceptance test within 10 business days, the relevant
acceptance event shall be deemed to have occurred.
(iii) Non-Conformance. In the event that the Acceptance Test Report shows that
the system or subsystems did not comply with the Statement of Work, the
Performance Specifications, or the acceptance criteria, Contractor shall
promptly redesign, repair or replace any Deliverable Item as is necessary to
correct the problem, at which time the specific acceptance test, or sub-test
thereof as the Parties agree is appropriate, shall be repeated. If Contractor,
in good faith, disputes MSV's refusal to approve any Acceptance Test Report, the
Parties shall meet and resolve the Dispute in accordance with the dispute
resolution procedure as provided herein.
F. Final Acceptance. Final Acceptance of each S-BTS will occur upon
successful completion of Acceptance Test (AT) at each site respectively and
submission of the Final Report in accordance with Section 6.0 of the Statement
of Work and evidenced by MSV's signature on the associated Certificate of
Completion. Should MSV not respond to a Certificate of Completion submitted by
Contractor for approval of the relevant acceptance test within 10 business days,
the Final Acceptance event shall be deemed to have occurred.
G. MSV Program Support. In the event that the MSV Core IP Network does not
provide the functionality and performance required by MSV, notwithstanding the
absence of defects by Contractor in the S-BTS, Contractor shall cooperate, in
good faith, with MSV to implement, on an accelerated basis, adjustments and
modifications to the design and production of the S-BTS to achieve the required
functionality and performance in the most expeditious and cost-effective manner.
The Parties will agree on a reasonable basis for compensating Contractor for the
performance of such activities, which shall be established in accordance with
Article
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22(Changes). For the purposes hereof the MSV Core IP Network shall be as defined
in the Statement of Work.
Following Final Acceptance for a period of 12 months Contractor shall provide,
if requested support for the integration of the MSV hybrid network including the
Satellite Based Network (SBN) and the Ancillary Terrestrial Network (ATN). Such
support will be provided by Contractor on a time and materials basis.
H. Acceptance of Spares. (i) Inspection. With respect to each Spare Part, MSV
shall perform acceptance inspection within ten (10) days after such Spare Part
arrives at the location designated for delivery thereof in Article 3.B. The
purpose of the acceptance inspection shall be to determine whether each such
Spare Part meets applicable Performance Specification requirements as of the
date of such delivery.
(ii) Acceptance Inspection Results. Within ten (10) days after completion of
acceptance inspection pursuant to this Article for any Spare Part, MSV shall
notify Contractor in writing of the results of such acceptance inspection. In
the event that such acceptance inspection demonstrates conformity of such Spare
Part to the requirements of the applicable Performance Specification, such
Deliverable Item shall be accepted by MSV for all purposes hereunder, and MSV's
written notice shall so state. In the event that such acceptance inspection
discloses any non-conformance of such Spare Part to the applicable Performance
Specification, MSV's notice shall identify each such non-conformance, and
Contractor shall correct or repair such non-conformance and resubmit such Spare
Part for a second acceptance inspection on the terms established in this
Article.
I. Deliverable Documentation. (i) MSV Approval Required. Deliverable
Documentation requiring MSV approval pursuant to the Statement of Work shall be
deemed accepted upon MSV's issuance of a written approval of such Deliverable
Documentation. MSV shall, within ten (10) Business Days after delivery of such
Deliverable Documentation to the location designated in Article 3.B, notify
Contractor in writing that such Deliverable Documentation has been accepted in
accordance with the Statement of Work, or that such Deliverable Documentation
does not comply with the applicable requirements of the Statement of Work, as
applicable, identifying each such non-conformance (with reference to the
applicable requirement of the Statement of Work). Contractor shall promptly
correct any non-compliant aspect of such Deliverable Documentation identified in
such notice from MSV, and re-submit it to MSV for a second acceptance inspection
pursuant to this Article. The provisions of this Article shall thereafter apply
to the corrected Deliverable Documentation. If MSV fails to provide notice
within the time specified, the Deliverable Documentation shall be deemed
accepted.
(ii) MSV Approval Not Required. Deliverable Documentation that does not require
MSV approval pursuant to the Statement of Work shall be deemed accepted upon
delivery of such Deliverable Documentation to the location designated in Article
3.1 and in a condition that fully conforms to the provisions of this Contract,
unless within ten (10) Business Days of delivery, MSV notifies Contractor in
writing that such Deliverable Documentation does not comply with the applicable
requirements of the Statement of Work, identifying each such non-conformance
(with reference to the
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applicable requirement of the Statement of Work deemed not met). Contractor
shall promptly correct any non-compliant aspect of such Deliverable
Documentation identified in such notice from MSV and re-submit it to MSV for a
second acceptance inspection. The provisions of this Article shall thereafter
apply to the corrected Deliverable Documentation.
J. Training. Acceptance of Training, or any part thereof, required by the
Statement of Work shall occur upon Contractor furnishing Training, or such part
thereof, to MSV in accordance with the Delivery Schedule and in a condition
conforming to the Statement of Work. Any Training furnished to MSV shall be
accompanied by written notice from Contractor specifying that portion of the
Training being furnished. If such Training or part thereof does not conform to
the SOW, MSV shall notify Contractor in writing within fifteen (15) Business
Days of completion of such Training or portion thereof, that the Training, or
part thereof, does not conform to the requirements of the Statement of Work,
identifying each such non-conformance (with reference to the applicable
requirement of the Statement of Work deemed not met). Contractor shall, at its
cost and expense, promptly re-perform such training and shall notify MSV that
conforming training has been re-performed. The provisions of this Article shall
thereafter apply to the re-performed Training. If MSV fails to provide notice
within ten (10) Business Days of completion of Training or any part thereof,
Acceptance shall be deemed to have occurred with respect to such Training or
part thereof.
K. Other Services. Acceptance of other services provided hereunder, or any
part thereof, shall occur upon Contractor furnishing such services, or such part
thereof, to MSV in accordance with the Delivery Schedule set forth in Article
3.B and in a condition conforming to the requirements of this Contract, unless
rejected by MSV in writing within ten (10) Business Days after the date MSV has
knowledge of the non-conforming condition. To the extent feasible, any such
services furnished to MSV shall be accompanied by written notice from Contractor
specifying that portion of the services being furnished. If such services or
part thereof are non-conforming, MSV shall notify Contractor that the services,
or part thereof, do not conform to the requirements of the Statement of Work,
identifying each such non-conformance. Contractor shall promptly correct such
non-conformance and shall notify MSV that the corrections have been made. The
provisions of this Article shall thereafter apply to the corrected Services.
L. Inspection Rights; Costs Borne by MSV. MSV Personnel shall be permitted to
attend and witness the tests and reviews set forth in this Article. MSV shall be
responsible for all costs and expenses incurred by MSV Personnel in the exercise
of its inspection rights under this Article, including travel and living
expenses.
M. Warranty Obligations. In no event shall Contractor be released from any of
its warranty obligations applicable to any Deliverable Item as a result of such
Deliverable Item having been accepted as set forth in this Article 7.
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Article 8. Contractor Deliverables, Title and Assumption of Risk
A. Title to all Deliverable Items specified in Paragraph A of Article 2
hereof, entitled Delivery by Contractor, shall pass to MSV upon shipment. The
Contractor warrants to MSV that it has and will deliver good title to all such
Deliverable Items, free from any claim, lien, pledge, mortgage, security
interest, or other encumbrances, including, but not by way of limitation, those
arising out of the performance of the Work. Notwithstanding the foregoing
Contractor shall be responsible for all costs of shipment, including insurance,
to the MSV designated S-BTS sites in the continental US or Canada.
B. With respect to each such Deliverable Item, the risk of loss or damage
shall be borne by Contractor up to shipment. After such shipment, MSV shall bear
the risk of loss or damage, save for any loss or damage caused by Contractor or
any of its subcontractors.
C. Delivery of any Deliverable Items hereunder shall be FCA each site as set
out under Article 3.B. from Contractor's (or Contractor's suppliers) facility
(Incoterms 2000).
D. Notwithstanding the passing of title or documents and reports, MSV's
rights to use the information contained therein shall be subject to Article 11
hereof, entitled Intellectual Property Rights.
Article 9. Warranty and Support
A. Notwithstanding any prior inspection or acceptance by MSV, Contractor
warrants that:
(1) All Deliverable Items specified in Paragraph A of Article 2
hereof, entitled Delivery by Contractor, shall be in new condition when first
delivered to MSV, and shall be free from any defects in materials, workmanship
and design that would have a material adverse affect on the performance of such
equipment in accordance with the S-BTS Technical Specifications;
(2) All services shall be performed in a skillful and workmanlike
manner consistent with the best practices of the industry; and
(3) All services and Deliverable items, including hardware, software,
services and documentation shall conform to the requirements specified in this
Contract, and the Exhibits entered into contemporaneously herewith.
B. The following provisions apply for the first full year of warranty
provided hereunder ("Initial Warranty Period") and for Support and Maintenance
if purchased by MSV, and shall only apply thereafter for each additional year of
warranty support purchased by MSV under the Annual Warranty, Support and
Maintenance Option set forth in the Price and Payment Plan. In the event of
defective or non-conforming Work, whether equipment, services, software, reports
or otherwise, MSV shall notify
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Contractor in writing that the Work is non-conforming. Such notice may be
given after delivery, in accordance with Paragraph B of Article 7 hereof,
entitled Acceptance. In either case, the notice shall identify those particulars
in which the Work fails to conform. MSV shall have the following remedies:
(1) MSV may require Contractor to correct or replace the defective or
non-conforming Work at Contractor's expense. The decision whether the
non-conforming Work is to be corrected or replaced shall be at Contractor's
option. If Contractor does not correct or replace the Work or re-perform the
Services after a ten (10) day cure period following written notice from MSV
(which shall be extended to a thirty (30) day cure period if such re-performance
is not feasible within the ten (10) day period, provided that Contractor makes
substantial progress in remedying the defect within the ten (10) day period), or
if Contractor fails to do so effectively, MSV may have the correction or
replacement undertaken by a third party, in which case Contractor shall
reimburse MSV for all direct re-procurement costs reasonably and actually
incurred by MSV. Contractor warrants that it shall use reasonable efforts to
efficiently use the resources or services necessary to perform the Work.
(2) Return Shipping and Repair. Contractor shall be responsible for
the cost of shipment (including transportation, transit insurance, taxes and
duties) of any such Deliverable Item to such facility, and the cost of packing
and return shipment (including transportation and transit insurance) of any such
Deliverable Item, once repaired or replaced, to MSV. Risk of loss for such
Deliverable Item shall transfer to Contractor upon delivery by MSV of such
Deliverable Item to the shipping carrier by MSV, and risk of loss shall transfer
to MSV for any such Deliverable Item once properly re-installed on-site on the
S-BTS. If required, MSV shall ship to Contractors facility, any such Deliverable
item.
(3) If returning a component for repair is not commercially practical,
Contractor shall repair the defective component on site, at Contractor's
expense, including travel expenses
(4) If Contractor is required to repair a particular component or
subassembly of an S-BTS more than three (3) times in the first 12-month period
following Final Acceptance, Contractor shall replace such defective component or
subassembly in its entirety at no charge.
(5) MSV may elect not to have the defective or non-conforming Work
corrected or replaced, in which case the Parties shall in good faith negotiate
an equitable reduction in the price and, to the extent MSV has already made
payments in excess of the reduced price, Contractor shall promptly refund that
amount.
(6) New Deliverable Items. Contractor represents, warrants, and
covenants that all equipment (including parts, sub-assemblies and components)
comprising the Deliverable Items shall be new, and neither refurbished nor
re-manufactured.
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(7) Warranty of Repaired or Replacement Items. Any item or any
component corrected, repaired or replaced under warranty shall be warranted on
the terms of this Article for the longer of ninety (90) days or the duration of
the warranty of the original item or component.
(8) Spares. Contractor shall provide MSV with a plan for maintaining
Spare Parts, including a list of all mission-critical replacement level parts.
Such plan shall take into account delivery times for limited source and
long-lead items. During the Initial Warranty Period, Contractor shall maintain
and replenish a Spare Parts inventory in accordance with such plan. At the end
of the Initial Warranty Period, if MSV purchases the Warranty, Support and
Maintenance Option the Spare Parts inventory shall be fully-replenished by
Contractor. Any other item, component or part supplied as a Spare Part shall be
warranted in accordance with this Article for the longer of a period of one (1)
year from the date of delivery to MSV or the remainder of the Warranty Period
for the part replaced.
(9) Software Warranty. In addition to the general warranty set forth
above, through the Initial Warranty Period and any additional Warranty, Support
and Maintenance Periods MSV exercises as referenced in the Price and Payment
Plan, Contractor shall correct all software errors and bugs, and provide any
patches and updates to bring the software in conformance with the Statement of
Work and applicable specifications (collectively, "Software Corrections").
Contractor shall also promptly make any upgrades, enhancements and releases of
the software (collectively, "Software Updates") necessary to correct any
software errors and bugs available to MSV at no charge during the Warranty
Period, and thereafter at a commercially reasonable price. Such Software
Corrections and Software Updates shall be tested to MSV's reasonable
satisfaction prior to release.
(10) No Virus. Contractor warrants that no code, device or routine
(including, without limitation, time bombs, back doors or drop dead devices)
that would have the effect of disabling or otherwise shutting down all or any
portion of any software comprising the S-BTS ("Viruses") is coded or introduced
into any Deliverable Item any time prior to Final Acceptance (unless MSV
expressly authorizes the inclusion of a disabling code). If a Virus is present
in the S-BTS during the Initial Warranty Period and it is determined that the
introduction of the Virus was not attributable to Contractor, Contractor shall
assist MSV in removing or reducing the effects of the Virus, and assist MSV with
mitigating and restoring any such losses of operational efficiency or data that
arise as a result of Virus, all at MSV's expense. In no event shall Contractor
invoke any Virus or disabling code at any time, including upon expiration or
termination of the Contract (in whole or in part) for any reason, without MSV's
prior written consent.
(11) Deliverable Documentation and Documentation. Contractor warrants
that each item of data and documentation deliverable under the Contract shall be
complete, correct and up to date, and shall otherwise conform to the
requirements of this Contract. Contractor shall provide correction to any data
and documentation when Contractor becomes aware of any inaccuracy.
(12) Latent Defects. Contractor further warrants the Deliverable Items
against Latent Defects for a period of four (4) years after the Initial Warranty
Period.
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For the purposes hereof "Latent Defect" means with respect to any item, a
material non-conformance with S-BTS Technical Specification which (1) could not
have been reasonably discovered during the initial one year Warranty Period and
(2) repeats itself in a significant way under similar circumstances and thereby
adversely affects MSV's business operations.
(13) Parts Shortage/Obsolescence. Contractor warrants that, to the best
of its knowledge, as of the date of this Contract it has not been notified that
any component parts to be used in the design of the Deliverable Items will
become obsolete. Contractor agrees to notify Customer of any parts that are
placed on a parts shortage list or become obsolescent during the term of this
Contract.
(14) Title. Contractor represents and warrants it shall provide good
and salable in commerce title, free and clear of any liens, security interest,
claims or any other encumbrances of any kind, at the time title passes to MSV
pursuant to Article 8 (Contractor Deliverables, Title and Assumption of Risk).
(15) Intellectual Property. Contractor represents and warrants that as
of EDC, Contractor is not aware of any claim that the Work or any Intellectual
Property owned or supplied by Contractor to be utilized or incorporated in any
Deliverable Item or that the manufacture of any Deliverable Item infringes any
Intellectual Property Right of any third party. Subject to any license fees or
royalties for which Customer would be indemnified pursuant to Article 12,
Customer shall not be required to pay any license fees or royalties apart from
those included in the Purchase Price for use of any Intellectual Property
utilized or incorporated in any Deliverable item or the manufacture of any
Deliverable item.
(16) Expeditious Remediation. Contractor shall perform its obligation
under this Article in an expeditious manner so as to minimize any interruption
or risk of interruption to the functioning of the Core and Transport Component
of the MSV Network, and Contractor shall take all such actions as are required
to restore functionality to the S-BTS so that it complies with the Performance
Specification.
(17) Pass-Through Warranties. Without limiting Contractor's warranty
obligations, to the extent that Contractor has been given the right within its
agreements, Contractor shall pass through to MSV the benefits of any warranties
to which Contractor is entitled to by virtue of Contractor's purchase of S-BTS
equipment or software from the manufacturers, lessors or licensors of such
items.
C. Quality Assurance. Within three (3) months after EDC, the Parties shall
develop and agree upon a written quality assurance program and procedure ("the
Quality Assurance Program"). Contractor shall maintain compliance with the ISO
9001 series approach to quality in the performance of all of its obligations
under the Contract. If Contractor fails to either implement or follow the
Quality Assurance Program, MSV may, in its discretion, freeze Contractor's
production until said date when the Quality Assurance Program is properly
implemented and followed. Contractor's work stoppage pursuant to this Article
9.D. shall not relieve Contractor of its obligation to comply with the Milestone
Schedule and Delivery Schedule.
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D. Post-Warranty Support. Contractor shall use commercially reasonable
efforts to ensure that software support and spare parts may be procured for the
S-BTS for a period of 7 years from Final Acceptance. Subject to the previous
sentence, after the Initial Warranty Period and at MSV's request, Contractor
shall sell additional spare parts (those not included in the then-current
replenished Spare Parts inventory) to MSV and/or its Service Providers and
suppliers on commercially reasonable terms and prices provided that to the
extent such spare parts or components for such spare parts have been
discontinued Contractor's obligation shall be to use commercially reasonable
efforts to assist MSV to migrate to functionally equivalent alternative parts.
E. Source Code Escrow. Contractor shall place the source code of any software
licensed to MSV or used in the operations and maintenance of the S-BTS in escrow
for release to MSV or its designee upon the occurrence of certain agreed upon
events, including the failure of Contractor to maintain and support the software
as set forth in the Contract or the insolvency or bankruptcy of Contractor or
termination of this Contract by MSV for Contractor's default in accordance with
Article 17 A (Termination For Cause). MSV shall be responsible for all fees
charged by the escrow agent in setting up and maintaining the escrow account.
F. With respect to each Deliverable Item or service, the Initial Warranty
Period (which shall include Support and Maintenance if purchased by MSV) shall
run for a period of one (1) year from the Final Acceptance date and then for
additional one (1) year renewal periods if renewed by MSV pursuant to the
Warranty, Support and Maintenance Option.
G. Any corrections or replacements made pursuant to this Article 9 shall be
subject to Article 8 hereof, entitled Contractor Deliverables, Title and
Assumption of Risk. With respect to any component that is corrected or replaced,
the warranty period specified in this Article shall be suspended from the date
of notification of the defect by MSV and shall recommence upon the date of
satisfactory completion of the correction or replacement for the unexpired
portion of the warranty period. Where such correction or replacement renders the
Work or any part thereof non-functional, the warranty period shall be similarly
extended for the Work or any part thereof.
H. The rights and remedies of MSV provided in this Article 9 shall be in
addition to, and without prejudice to, or forfeiture of, any other rights and
remedies MSV may have under this Contract (including, but not limited, to any
warranty and maintenance plan) or at law or equity.
I. EXCEPT AS SPECIFICALLY SET FORTH IN THIS CONTRACT, CONTRACTOR NEITHER
MAKES NOR ASSUMES ANY LIABILITY UNDER ANY WARRANTIES (WHETHER EXPRESS, IMPLIED,
OR STATUTORY) ON OR WITH RESPECT TO CONTRACTOR DELIVERABLES AND SERVICES TO BE
PROVIDED UNDER THIS CONTRACT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
CONDITIONS OR WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE.
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J. Notwithstanding the foregoing, Contractor shall not be obligated to
provide the warranty services set forth herein if MSV has not satisfied all
payment obligations of which it has been given Notice by Contractor, which are
past due and outstanding as of the date of any claim by MSV under the above
warranty. If MSV has past due but unpaid obligations, Contractor may, at its
sole discretion and without liability to Contractor, in addition to demanding
that MSV fulfills all payment obligations contained herein: (i) demand full
payment for any repairs or Work covered by the warranty at Contractor's standard
out-of-warranty rates; (ii) reject Work sent for repairs; or (iii) hold any Work
sent for repairs until MSV fulfills all payment obligations contained herein.
None of the foregoing options elected by Contractor shall result in an increase
in the duration of the warranty period.
K. The limited warranties set forth in this Article 9 will not apply with
respect to (i) equipment that has been subject to unauthorized alteration,
modification, or repair; (ii) defects or failures resulting from improper
handling, storage, operation, interconnection, or installation; (iii) failure to
continually provide a suitable installation and operational environment; or (iv)
any other cause beyond the range of normal usage for the equipment (except, in
all of the foregoing cases, when caused by Contractor).
L. Each Party represents and warrants that:
(i) it is a validly existing corporation or limited partnership, as
the case might be, in good standing under the laws of the
jurisdiction in which it was incorporated or established,
(ii) it is duly qualified and in good standing to do business in all
jurisdictions in which the business conducted (or to be conducted)
by it makes such qualification necessary, except for those
jurisdictions where the failure to be so duly qualified will not
have a material adverse effect on its business or the performance
of its obligations under the Contract,
(iii) it has full corporate power and authority to enter into the
Contract and to perform its obligations hereunder,
(iv) the Contract has been duly and validly executed and delivered by
such Party and constitutes a valid and legally binding obligation
of such Party, and
(v) the execution and performance of the Contract does not and will
not violate any other contract, obligation or instrument to which
it is a party, or which is binding upon it, including terms
relating to covenants not to compete, Intellectual Property
ownership provisions, and confidentiality obligations.
Article 10. Access to Work in Progress
A. To the extent necessary to implement this Article, Contractor shall pass
the provisions hereof through into all such subcontracts and suppliers of
critical path items ("Major Subcontractors").
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B. The Contractor shall provide for design and progress review meetings with
MSV, and submit reports and documentation, in accordance with the Statement of
Work and the S-BTS Technical Specification.
C. Contractor represents and warrants that, subject to Article
19(Governmental Authorizations), the access to the Work and Work-in-process to
be provided to MSV Personnel under this Contract is, or shall be, substantially
similar to the access to the work and work-in-process Contractor provides to its
other major commercial customers. In the event Contractor becomes aware that the
access to the Work and Work-in-process provided under this Contract is
otherwise, Contractor shall promptly remedy that situation.
D. MSV shall have the right, at all reasonable times during the performance
of this Contract, to monitor the Work in progress at the plants of Contractor,
and shall do so in compliance with Contractor's normal and customary safety and
security policies and procedures (as enforced by Contractor with respect to its
own employees) of which MSV has received prior written notice (including a copy
of such policies and procedures). MSV Personnel shall be allowed access to all
Work being performed at Contractor's facility for the Deliverable Items, for the
purpose of observing the progress of such Work at all times. Subject to Article
19, MSV shall be provided up to two (2) non-escort permanent badges and up to
ten (10) escort badges to agreed work areas where the Work is being performed.
Any foreign national visitors shall require escort badges. Non-escorted
personnel will be restricted to certain designated areas.
E. In the case of Contractor's Major Subcontracts, Contractor shall, subject
to such subcontractors' reasonable security and compliance requirements require
that each such subcontract contain a provision substantially similar to this
Article 10 with respect to MSV's access to the applicable subcontractor's
facilities and performance of the Work, including the provision of up to three
(3) non-escort permanent badges and up to three (3) escort badges to agreed work
areas where the Work is being performed. With respect to non-Major Subcontracts,
Contractor shall require that each such subcontract contain a provision
permitting MSV Personnel escorted access to the subcontractor's facilities for
purposes of observing the Work performed under such subcontract.
F. For the purpose of monitoring the progress of the Work being performed by
Contractor hereunder, Contractor shall provide office facilities at or proximate
to Contractor's plant for one (1) resident MSV Personnel through Final
Acceptance of the S-BTS. The office facilities to be provided shall include a
reasonable amount of office space, office furniture, local telephone service,
reasonable long-distance telephone usage, internet access (at the same speed and
quality available to Contractor personnel), access to copy machines, facsimile
machines, meeting rooms, car parking facilities and to the extent available,
videoconference rooms, to enable MSV personnel to monitor the progress of Work
under this Contract. In the case of Contractor's Major Subcontracts, Contractor
shall use commercially reasonable efforts to ensure that reasonable office
facilities, consistent with the
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specifications described above, for up to one (1) MSV Personnel are provided
through the completion of the subcontract.
G. MSV shall exercise its rights under this Article 10 in a manner that does
not unreasonably interfere with Contractor's or its subcontractors' normal
business operations or Contractor's performance of its obligations under this
Contract or any agreement between Contractor and its subcontractors.
Article 11. Intellectual Property
A. Definitions. For the purposes of this Article 11, the following terms
shall have the following definitions:
(1) "Contractor Background IP" means all IP owned or controlled by
Contractor or by Contractor's subcontractors (if any) hereunder (a) as of EDC,
or (b) conceived and/or reduced to practice independent of this Contract: where
in either case such IP (i) is incorporated in the Deliverables, or (ii) is
Necessary or useful for the maintenance, operation, or use, or is Necessary for
the manufacture (as expressly provided for herein) of any Deliverable Item to be
provided by Contractor hereunder. The term "Necessary" means reasonably required
(in consideration of cost, performance and time to market factors) for Customer
to exploit the associated license rights of maintenance, operation, use or
manufacture.
(2) "Foreground IP" shall mean all IP developed solely by or on behalf
of Contractor as a result of or arising from Contractor's performance under this
Contract.
(3) "Intellectual Property" or "IP" means all ideas, information,
concepts, discoveries, inventions, methods or processes, specifications,
technology, software and other works of authorship, improvements and know-how
(whether or not patentable and whether or not reduced to practice), and all
associated rights in and to any patents, patent applications (including any
reissues, continuations, continuations-in-part, revisions, extensions and
reexaminations thereof), copyrights and trade secrets, and all rights in and to
any proprietary or confidential information.
(4) "MSV Background IP" means (i) all IP owned or controlled by MSV as
of EDC, and (ii) all IP conceived or developed by MSV (without any involvement
of Contractor) after EDC.
B. All Contractor Background IP and all Foreground IP shall remain the sole
and exclusive property of Contractor.
C. All MSV Background IP shall remain the sole and exclusive property of MSV.
D. (1) Subject to the terms and conditions of this Contract, Contractor
grants to MSV a fully paid-up, irrevocable, worldwide, nonexclusive,
non-transferable (except in the case of an assignment pursuant to Article 23),
right and license in and to the Contractor Background IP to manufacture, have
manufactured, sell, offer for sale, import, maintain, and use the Deliverable
Items provided by or on behalf of
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Contractor hereunder. In the case of manufacturing rights, this license in and
to the Contractor Background IP is limited in scope to manufacture for
components for an S-BSS system implemented, owned and operated by or on behalf
of MSV, or an affiliate of MSV, or an assignee of MSV under Article 23.
(2) Subject to the terms and conditions of this Contract, Contractor
grants to MSV a fully paid-up, irrevocable, worldwide, nonexclusive,
non-transferable (except in the case of an assignment pursuant to Article 23)
right and license in and to the Contractor Foreground IP to manufacture, have
manufactured, sell, offer for sale, import, maintain, and use the Deliverable
Items provided by or on behalf of Contractor hereunder.
E. Subject to the terms and conditions of this Contract, MSV grants to
Contractor a fully paid-up, irrevocable, worldwide, nonexclusive,
non-transferable, non-assignable right and license in and to the MSV Background
IP solely to the extent necessary for Contractor's performance under this
Contract.
Article 12. Intellectual Property Rights Indemnity
A. Contractor, at its own expense, shall defend, or at its option settle, any
claim, action or other proceeding threatened or brought against MSV or MSV's
customers based on allegations that any Deliverable Items provided by Contractor
hereunder infringes any patent, copyright, trade secret or other intellectual
property right of a third party ("IP Claim"), and shall indemnify and hold MSV
harmless against all losses, damages, liabilities, expenses and costs (including
reasonable attorneys' fees) incurred by and/or awarded against MSV or MSV's
customers as a result of any such IP Claim. MSV shall notify Contractor in
writing of any such IP Claim promptly after MSV becomes aware of the same, and
shall provide Contractor (at Contractor's expense) with such information and
assistance as reasonably required in connection therewith. Contractor shall have
sole control of the defense of such IP Claim and all negotiations for the
compromise or settlement thereof. Notwithstanding the foregoing, MSV shall have
the right to participate in the investigation and defense of, and any
negotiations regarding, such IP Claim with separate counsel chosen and paid for
by MSV.
B. Contractor shall have no liability under this Article 12 for any IP Claim
to the extent arising from: (i) use of any item provided by Contractor hereunder
in combination with other items not provided or approved by Contractor except as
such combinations may be expressly contemplated in this Contract, including the
Statement of Work or the S-BTS Technical Specification; (ii) MSV modification of
any item provided by Contractor hereunder; or (iii) Contractor's compliance with
MSV designs or specifications (to the extent that such designs or specifications
form the basis for the IP Claim), or Contractor's incorporation of technology
supplied or dictated by MSV (to the extent that such technology forms the basis
for the IP Claim).
C. This indemnity is in lieu of any other liability, whether or not based on
indemnity or warranty, express or implied, with respect to Intellectual Property
Rights.
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Article 13. Loss and Damage, Indemnity
A. For the purposes of this Article 13 the term "Indemnitee(s)" shall mean
MSV or Contractor, as the case may be.
B. This Article 13 shall apply with respect to any loss of or damage to
property, or personal injury or death, caused by an act or omission for which
either Party is legally liable, or either Party's subcontractors, or the
employees or agents of any of them, in the performance of this Contract.
C. In the case of loss or damage suffered by an Indemnitee, the Party causing
such loss or damage (hereinafter the "Indemnifying Party") shall provide
indemnification for all direct damages suffered.
D. In the case of loss or damage suffered by third Parties, including
employees of either Party or either Party's subcontractors, the Indemnifying
Party shall, at its own expense, defend any claims brought against any of said
Indemnitees, and shall pay all damages and costs associated with settlements or
awards in connection therewith. This obligation shall be contingent upon the
Indemnitees giving the Indemnifying Party prompt written notice of such claims,
appropriate authority to defend the claims on their behalf, and, at the request
of the Indemnifying Party, reasonable cooperation and assistance and such
relevant information as is available to them.
E. In the event that any of the milestones listed below ("Key Milestones") is
not completed within thirty (30) calendar days after the scheduled date for
completion specified therefor in the Statement of Work, then Contractor shall
pay liquidated damages, which are not intended to be, and shall not be construed
as, a penalty, for each calendar day of delay after the thirty (30) calendar day
grace period following the Milestone Date. Contractor shall pay MSV for each day
of delay in accordance with the following schedule:
Key Milestone #1 - Preliminary Design review (PDR) - US$3,583/day for each day
of delay up to a maximum of 1% of the total baseline contract price.
Key Milestone #2 - Critical Design Review (CDR) - US$7,166/day for each day of
delay up to a maximum of 2% of the total baseline contract price.
Key Milestone #3 - Factory Acceptance Test (FAT) - US$7,166/day for each day of
delay up to a maximum of 3% of the total baseline contract price.
Key Milestone #4 - Acceptance Test (AT) - US$14,332/day for each day of delay up
to a maximum of 4% of the total baseline contract price.
F. The total accumulated liquidated damages shall not exceed Ten percent
(10%) of the total Purchase Price, as adjusted by any price impact resulting
from changes to the Purchase Price.
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G. Notwithstanding the above provisions, liquidated damages shall not be
applicable: (1) for delayed completion of a Milestone when such delayed
completion is excused by an Excusable Delay Event as such is defined in Article
18 or such delayed completion is caused by the failure of MSV, its agent(s) or
its subcontractor(s) (other than Contractor) to act or perform as required under
this Contract including any delay or failure to furnish the required equipment
and property under Article 14. Any liquidated damages owed to MSV by Contractor
shall be due and payable within 30 days after Contractor's receipt of MSV's
invoice for the same, or in MSV's sole discretion, can be directed to be offset
from any payment due and owing to Contractor by MSV.
Article 14. MSV-Furnished Property and Facilities
A. With respect to all equipment or other property furnished to Contractor by
MSV pursuant to the Statement of Work and the S-BTS Technical Specification, the
following terms and conditions shall apply:
(1) MSV shall exercise all reasonable care to ensure that such
property is suitable for the purpose intended in connection with the performance
of the Work under this Contract. If Contractor is not so satisfied, it shall
give MSV written notice to that effect as soon as possible.
(2) The Contractor shall ensure that such property is used solely in
the performance of this Contract.
(3) Title to such property shall at all times remain with MSV, and
Contractor shall ensure that no claim, lien, pledge, mortgage, security
interest, or other encumbrance attaches to such property as a result of any act
or omission of Contractor or its subcontractors.
(4) The Contractor shall return such property to MSV when it is no
longer required in connection with the performance of any Work under this
Contract, or in the event of termination of this Contract. The costs associated
with returning the property shall be borne by MSV.
(5) The Contractor shall bear the risk of loss of or damage to such
property from the time that it arrives on the premises of Contractor or any of
its subcontractors and for so long as it remains in their custody, save for any
loss or damage caused by MSV or its agents or representatives. When the property
is returned to MSV pursuant to Paragraph A(4) of this Article 14, the risk of
loss or damage while in transit shall be borne by Contractor.
B. With respect to any facilities provided by MSV or any of its other
contractors pursuant hereto, whether for installation of the items to be
delivered by Contractor under this Contract or for any other purpose, MSV shall
exercise all reasonable care to ensure that such facilities are suitable for the
purpose intended.
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C. Late Delivery of MSV Furnished Items or Services. The late delivery of MSV
furnished items or services as required under Section 5.0 of the the Statement
of Work, shall be considered an event beyond the reasonable control of
Contractor, and, except for delays resulting from a Force Majeure Event or
resulting from an interdependency on Contractor delivered items, if such late
delivery is not cured within a thirty (30) calendar day grace period, and it has
a material adverse impact on Vendor's costs, the Delivery Schedule or
performance requirement, Vendor shall be entitled to an equitable adjustment in
price, schedule, performance requirements and other terms of this Contract in
accordance with Article 22. Any such claim made by Contractor of an impact to
the Contractor's costs, the Delivery Schedule or performance requirements must
be in writing and supported by detailed estimates, sufficient to allow the
Parties to reasonably assess the overall impact and any equitable adjustments
that may be required.
Article 15. Confidentiality
A. Each Party shall during the term of this Contract for a period of five (5)
years thereafter, keep secret and confidential the terms and conditions of this
Contract as well as all Confidential Information provided in connection with
this Contract disclosed to it by the other Party or otherwise belonging to the
other Party (and shall procure that any employees or subcontractors are
similarly bound) and shall not disclose the same to any person or entity except
its employees, Affiliates, attorneys, agents and consultants who have a need to
know, who have been informed of and have agreed in writing (or, in the case of
employees or attorneys are otherwise subject to confidentiality obligations
consistent with the obligations set forth herein) to abide by the receiving
Party's obligations under this Article 15. The receiving Party shall use not
less than the same degree of care to avoid disclosure of such Confidential
Information as it uses for its own Confidential Information of like importance;
but in no event less than a reasonable degree of care. Confidential Information
shall be used only for the purpose of performing the obligations and exercising
its rights under this Contract, or as the disclosing Party otherwise authorizes
in writing.
B. For the purpose of this Contract, "Confidential Information" means all
confidential or proprietary information in whatever form transmitted, that is
disclosed or made available by such Party (hereinafter referred to as the
"disclosing Party") to the other Party hereto (hereinafter referred to as the
"receiving Party") and: (i) is identified as proprietary or confidential by
means of a written legend thereon, or (ii) if disclosed orally, is identified as
proprietary or confidential at the time of initial disclosure and then
summarized in a written document, with the Confidential Information specifically
identified, that is supplied to the receiving Party within ten (10) days of
initial disclosure. Confidential Information also shall include, whether or not
designated "Confidential Information," (i) correspondence under this Contract
and (ii) all information concerning either Party (and/or its Affiliates)
regarding its operations, affairs and businesses, its financial affairs, and its
relations with its customers, employees and service providers (including
business plans, customer lists, customer information, account information and
consumer markets).
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C. Article 11 hereto, entitled Intellectual Property Rights, shall take
precedence over the provisions of this Article to the extent that there is any
inconsistency.
D. The foregoing provisions of this Article shall not apply to know-how and
information which:
(1) is or becomes public knowledge without breach of this Contract;
(2) is already known to the receiving Party at the time of its
disclosure by the disclosing Party and was not otherwise acquired by the
receiving Party from the disclosing Party under any obligations of confidence;
(3) is independently developed by Contractor or MSV, which fact can be
shown by competent evidence; or
(4) MSV or Contractor is compelled by legal process or government
regulation or order to disclose, provided that the disclosing Party is given
prompt notice of any proposed release of information under this sub-clause and
that the disclosing Party be given ample opportunity to engage in legal action
to resist and/or restrict any such disclosure.
E. Notwithstanding the foregoing, in the event that the receiving Party
becomes legally compelled (including disclosures necessary or in good faith
determined to be reasonably necessary under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended) and disclosures to
its investors, to the extent such information is customarily disclosed to them
in connection with similar transactions, to disclose Confidential Information of
the disclosing Party, including this Contract or other supporting document(s),
the receiving Party shall, to the extent practicable under the circumstances,
provide the disclosing Party with written notice thereof so that the disclosing
Party may seek a protective order or other appropriate remedy, or to allow the
disclosing Party to redact such portions of the Confidential Information as the
disclosing Party deems appropriate. In any such event, the receiving Party will
disclose only such information as is legally required, and will cooperate with
the disclosing Party (at the disclosing Party's expense) to obtain proprietary
treatment for any Confidential Information being disclosed.
F. Except as expressly provided in this Contract, nothing in this Contract
shall be construed as granting the receiving Party whether by implication,
estoppel, or otherwise, any license or any right to use any Confidential
Information received from the disclosing Party, or use any patent, trademark, or
copyright now or hereafter owned or controlled by the disclosing Party.
Article 16. Public Release of Information
A. Each Party shall obtain the written approval of the other Party concerning
the content and timing of news releases, articles, brochures, advertisements,
prepared speeches, and other information releases to be made concerning this
Contract or the Work performed or to be performed hereunder.
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B. The obligations set forth in this Article 16 shall not apply to the
following:
(i) information that is publicly available from any governmental
agency or that is or otherwise becomes publicly available without
breach of this Contract; and
(ii) internal publications or releases which are clearly marked as not
intended for the public at large
(iii) to its investors, to the extent such information is customarily
disclosed to them in connection with similar transactions.
Article 17. Termination
A. For Cause. Either Party shall have the right terminate this Contract for
cause by notice in writing to the other Party in the event that:
(1) the other Party defaults in the performance of any of its material
obligations hereunder and (in the case of a remediable breach) fails to make
significant progress in resolving same within sixty (60) working days of being
requested by written notice to do so; or
(2) the other Party becomes insolvent or the subject of proceedings
under any law relating to bankruptcy or the relief of debtors or admits its
inability to pay its debts as they become due.
B. For Convenience. By written notice to Contractor, in the event that MSV
completely and permanently cancels the satellite element of its network build
out MSV may terminate this Contract, in whole or in part, for its convenience at
any time prior to completion. In the event of such termination by MSV,
Contractor shall: (a) stop production, construction and/or performance of the
Work on the date and to the extent specified in the notice of termination for
convenience; (b) place no further orders or subcontracts for labor, materials,
services, or facilities, except as may be necessary for completion of such
portion of the Work as is not terminated; (c) terminate orders and subcontracts
to the extent that they relate to the Work terminated by the notice of
termination for convenience, and to the extent terminable by their terms; (d)
settle all outstanding liabilities and all claims arising out of such
termination or orders, subcontracts for materials, services, or facilities; and
(e) with respect to the portion(s) of the Work subject to the notice of
termination for convenience, take such action as may be necessary, or as MSV may
direct, for the protection and preservation thereof which is in the possession
of Contractor or any subcontractor and in which MSV has or may acquire an
interest. Contractor shall submit a written claim to MSV for cancellation
charges pursuant to this Article 17-B within ninety (90) days after the date of
the notice of termination for convenience. MSV shall pay for all Milestones
successfully completed as of the date of termination, plus all reasonable direct
and indirect costs incurred (on a fully allocable basis in accordance U.S. GAAP
and including third party cancellation charges) in respect of the terminated
work, plus 10% of such amount subject to the termination liability caps
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set forth in the Price and Payment Plan. MSV will pay such termination charges
within thirty (30) days of the receipt of Contractor's claim. Contractor shall
take all reasonable commercial steps and shall cause its subcontractors to take
all reasonable commercial steps to minimize the commercial impact of the
termination.
Article 18. Excusable Delay
A. Neither Party will be liable for default or delay in the performance of
its obligations hereunder, to the extent such default or delay is caused by an
"Excusable Delay Event", which occurs when both of the following circumstances
exist:
(i) acts of war, domestic and/or international terrorism, civil riots
or rebellions, epidemic, quarantines, embargoes and other similar
unusual governmental actions, and extraordinary elements of nature
or acts of God delay performance of a Party's obligations, and
(ii) such delay could not have been prevented through the
non-performing Party's reasonable precautions or commercially
acceptable processes, or could not have been reasonably
circumvented through the use of substitute services, alternate
sources, work-around plans or other means by which the
requirements of a buyer of services substantially similar to the
Work to be provided under the Contract would be satisfied.
The Parties expressly acknowledge that Excusable Delay Events do not include and
cannot be caused by labor strikes, lockouts, or other labor disturbances, or the
non-performance of subcontracts or other third parties relied on or otherwise
engaged by Contractor, except to the extent such subcontractor's non-performance
is itself the result of an Excusable Delay Event.
B. Upon the occurrence of any Excusable Delay Event that causes a delay in
Contractor's performance of its obligations hereunder, an equitable adjustment
shall be negotiated in the Statement of Work (Milestone Schedule), the Price and
Payment Plan (Payment Milestone Schedule) and other portions of this Contract
affected by the Excusable Delay Event; provided, however, Contractor
acknowledges and agrees, there shall be no adjustment to the Purchase Price due
to any Excusable Delay Event.
Article 19. Governmental Authorizations
A. MSV shall be responsible for all dealings with any applicable government
authorities. This includes, but is not limited to, obtaining and maintaining any
license, permits, and/or other authorizations of any kind required for
installation, maintenance, testing, or operation of the Contractor hereunder, or
any portion thereof, including services related thereto. MSV shall pay all costs
of such licenses, permits and authorizations and all costs and expenses incurred
in obtaining and maintaining them. MSV's obligation to pay Contractor shall not
in any manner be
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waived by delay or failure to secure or renew, or by the cancellation of, any
required licenses, permits or authorizations. In addition, MSV shall comply with
any restrictions or conditions imposed by any applicable government authorities
on MSV's receipt or use of any satellite telecommunications services used in
conjunction with the Contractor deliverables in, between, or among any sites
within any country in which MSV intends to install such deliverables. MSV shall
not use such services in violation of any applicable law, rule or regulation.
B. Export Control Regulations
(1) It is expressly agreed that the execution of this Contract and the
subsequent delivery of the Contractor deliverables under this Contract will be
subject to all applicable export controls imposed or administered by the U. S.
Government including but not limited to the export of equipment, software and
technical data (including services).
(2) Performance by Contractor under this Contract is subject to
appropriate authorization by the U.S. Government as may be required, including
receipt and continued effectiveness of any export privileges/licenses.
(3) MSV agrees and acknowledges that Contractor will not supply either
directly or indirectly through third party sales channels or otherwise, any
equipment or services (i) to any Non-US military organization or intelligence
organization; (ii) which will be used for any military or intelligence
applications, whether pursuant to a dual civilian/military or intelligence
application or otherwise; or (iii) which will otherwise be located on or used in
support of any military or intelligence installation or base. MSV further agrees
and acknowledges that such prohibition shall apply to any purchase and sale or
resale of Contractor supplied goods (including third party goods), Contractor
supplied information or Contractor equipment or services under this or any other
agreement that Contractor may enter into with MSV in the future. MSV agrees to
inform Contractor in the event that MSV becomes aware that the supply or
delivery of Contractor equipment by Contractor, MSV or any third party would be
in contravention of the aforementioned prohibition. In the event that Contractor
has reason to believe that any of the foregoing prohibitions have not been fully
complied with, Contractor may immediately terminate this Contract, or any other
agreement or contract it has entered into with MSV without penalty or cost.
Contractor shall additionally require a similar prohibition to be clearly set
forth in any contract or agreement which the Parties may enter into now or in
the future. Notwithstanding the foregoing, MSV is not prohibited from using
Contractor supplied products and services to provide telecommunications services
(including telephone and internet access) to any of its users/end customers of
any type.
(4) Notwithstanding any other provision of this Contract, MSV shall
not use, distribute, transfer or transmit any products, software or technical
data (even if incorporated into other products) provided to it by Contractor
under this Contract except in compliance with all applicable export laws and
regulations. MSV shall not, directly or indirectly export or re-export the
following items to any country without the appropriate export authorization, as
specified in the applicable export laws: (a) software or technical data
disclosed or provided to MSV by Contractor or (b) the
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direct product of such software or technical data. The obligations stated herein
shall survive the expiration, cancellation or termination of this Contract or
any other related agreement/contract.
(5) Each Party shall, at its expense, perform its respective
obligations hereunder in accordance with all applicable laws, rules, and
regulations, and the conditions of all applicable governmental approvals,
permits, or licenses.
Without limiting the generality of the foregoing, Contractor will not, directly
or indirectly, take any action that would cause MSV to be in violation of U.S.
anti-boycott laws under the U.S. Export Administration Act, the U.S. Internal
Revenue Code, or any regulation thereunder. Neither Party shall, without prior
written authorization from the Department of Commerce or other agency of the
U.S. Government having jurisdiction, export, directly or indirectly, any U.S.
source technical data (as defined in accordance with applicable regulation)
acquired from the other Party or any products utilizing any such data, to any
country for which at the time of export, an export license or other governmental
approval is required by an applicable statute or regulation. In its performance
of this Contract, Contractor will not, directly or indirectly, make, offer, or
agree to make or offer any loan, gift, donation, or other payment, whether in
cash or in kind, for the benefit or at the direction of any candidate,
committee, political party, government or its subdivision, or any individual
elected, appointed, or otherwise designated as an employee or officer thereof,
for the purpose of influencing any act or decision of such entity or individual
or inducing such entity or individual to do or omit to do anything, in order to
obtain or retain business or other benefits except as may be expressly permitted
under the Foreign Corrupt Practices Act and the regulations promulgated
thereunder.
(6) Contractor shall promptly apply for and use reasonable and
diligent efforts to obtain U.S. and non-U.S. Government approvals, permits and
licenses necessary for export or import of any Deliverable Items and Services
and other technical data and equipment being furnished by Contractor, pursuant
to or to be utilized in connection with this Contract. MSV agrees to cooperate
with Contractor in Contractor's efforts to obtain any such approvals, permits
and licenses, including providing Contractor with required information in MSV's
possession.
(7) Contractor shall timely apply for and, once issued, maintain U.S.
Government export licenses, agreements and other approvals that are required for
export of Contractor's goods and technical data (including services) to MSV (as
may be required under applicable law) including access to Contractor facilities,
hardware, software, Deliverable Documentation, other technical information or
technical services in connection with the performance of this Contract. MSV
shall be responsible for obtaining all appropriate export licenses for its
"foreign person" personnel and "foreign person" personnel of the representatives
of MSV, as well as MSV's insurance providers and non-U.S. Government personnel.
A "foreign person" shall be as defined in the International Traffic in Arms
Regulations, 22 C.F.R. ss.120.16. MSV shall provide the reasonable cooperation
and support necessary for Contractor to apply for and maintain such required
U.S. export licenses, agreements and other approvals. At MSV's request,
Contractor shall include MSV and other
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related entities as required, including any foreign companies necessarily
required to be part of the development, procurement or integration as a named
Party in any application to the U.S. government for approval of such export
licenses, agreements and other approvals. Contractor shall provide the Parties
to such export licenses and agreements copies of the export licenses and
agreements, including any U.S. government provisos related to same.
(8) Contractor shall review with MSV any application Contractor makes
to any government department, agency, or entity for any approval, permit,
license, or agreement, as may be required for performance of the Work, prior to
submission of such application. Contractor shall provide MSV a minimum of three
(3) Business Days to review such application prior to submission to such
governmental entity, and Contractor shall in good faith consider any comments
and proposed revisions made by MSV for incorporation into such application.
C. MSV shall not be responsible in any way for the consequences, direct or
indirect, of any violation by Contractor, its subcontractors, or their
respective Affiliates of any law, rule or regulation of any country whatsoever.
Article 20. Applicable Law
This Contract, and an Arbitration or dispute instituted hereunder, shall be
governed by and interpreted according to the laws of the state of New York,
excluding the choice of laws rules thereof.
Article 21. Dispute Resolution
A. Negotiation. The Parties shall attempt to resolve any dispute, controversy
or difference that may arise between them through good faith negotiations as
follows:
(i) The disputing Party shall provide written notice describing the
Dispute and recommending corrective actions, and the Parties'
Program Managers shall promptly consult to resolve the Dispute.
(ii) If the Program Managers are unable to resolve the Dispute within
ten (10) days of written notice, either Party may escalate the
Dispute to the executive level, and if the executives are unable
to resolve the Dispute either within an additional fifteen (15)
days, then the Dispute shall be escalated to the Chief Executive
Officer (CEO) of each Party.
(iii) In the event the Parties fail to reach resolution of such dispute
within sixty (60) days of entering into negotiations, either Party
may refer such dispute to arbitration pursuant to the provisions
of Section B, below. Notwithstanding the foregoing, the Parties
may elect to waive applicability of this section if: (1) both
Parties agree in writing that the nature of their dispute is such
that it cannot be resolved through negotiations; or (2) if a Party
shall suffer irrevocable harm by such delay.
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B. Arbitration. All disputes relating to this Contract shall be settled by
arbitration, to be conducted in accordance with the Commercial Arbitration Rules
("AAA Rules") of the American Arbitration Association ("AAA") in effect at the
time of arbitration. The arbitration shall be in accordance with the following
guidelines except to the extent the Parties to arbitration shall agree
otherwise:
(1) The place of arbitration shall be Washington, D.C. To the extent
the AAA Rules are not applicable, or are insufficient to fully resolve any
dispute under this Contract, the arbitrators shall apply Maryland law to the
extent necessary to resolve any dispute.
(2) The arbitration panel shall be composed of three arbitrators. Each
Party shall appoint one arbitrator. The two arbitrators appointed by the Parties
shall attempt to agree on a third arbitrator, who will act as chairman of the
panel. If said two arbitrators fail to nominate a third arbitrator within thirty
(30) days from the date of appointment of the latter arbitrator, any Party may
refer such selection to the AAA.
(3) All testimony and evidence related to confidential information or
trade secrets shall be safeguarded and maintained as confidential, with access
to such evidence to be only on a need-to-know basis and subject to all
reasonable precautions so as not to jeopardize the confidential information of
any Party.
(4) The Parties hereby accept jurisdiction of the arbitration tribunal
over the Parties and over the subject matter of the dispute.
(5) The arbitration award shall be binding and any court having
jurisdiction over the Parties or their assets may enforce judgment upon the
arbitration award.
(6) Costs and Expenses. Each Party shall bear its own costs and
expenses (including the costs and expenses of the arbitrator it selected) and
one-half of the costs and expenses of the third arbitrator, unless otherwise
determined in the arbitral award.
(7) The parties agree that notification of any proceedings, reports,
communications or any other document shall be sent as set forth in Article [25]
of this Contract.
(8) Arbitration Award. The arbitral tribunal's award may grant any
remedy or relief the tribunal deems within the scope of this Contract, but may
not make any award in any amount or on any theory of liability except as
otherwise allowed or provided in this Contract. Notwithstanding the foregoing,
the tribunal shall have no power or authority to amend or disregard any
provision of this Article 21 or any other provision of this Contract; in
particular, but without limiting the generality of the foregoing, the tribunal
shall not have the power or authority to exclude the right of a Party to
terminate this Contract when a Party would otherwise have such right. Any
monetary award made by the arbitrators shall be subject to the limitation of
liability set forth in Article 29.
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(9) The arbitration panel shall have the exclusive right to determine
the arbitrability of any disputes.
(10) In the event of any conflict between the AAA Rules and any
provision of this Contract, this Contract shall prevail.
C. Continuation of Performance. During the arbitration, unless directed
otherwise by the other Party in writing, the Parties shall continue to perform
their obligations under this Contract to the extent such performance is not
precluded by the subject matter of the dispute including the obligation to take
all steps necessary during the continuation of the Dispute to ensure the Work
will be performed within the time stipulated or within such extended time as may
be allowed under this Contract.
D. Litigation. Notwithstanding the provisions above, either Party may resort
to court action for injunctive relief at any time if the Dispute resolution
process would permit or cause irreparable injury to such Party or any third
party claiming against such Party, due to delay arising out of the Dispute
resolution process.
Article 22. Changes
A. At any time during this Contract, MSV may request changes in the Work, so
long as such changes are within the general scope of the Contract. Such Changes
may include ordering additional Work or services; modifying in whole or in part
the Work to be provided herein, by one or more orders. For the avoidance of
doubt, any required adjustments to the Work resulting from MSV's selection of an
air-interface technology at PSDR as described in Article 4 A. shall not be
considered changes for the purposes of this Contract and no change request or
adjustment to the Purchase Price or Milestone Schedule will be required, or
result from same.
B. The Contractor may also propose changes for consideration by MSV by
submitting same in a written proposal that describes in reasonable detail the
proposed change and the technical, performance and economic effects on the S-BTS
and the Core and Transport Component of the MSV Network Program. MSV may decline
to change the Statement of Work, or may implement such change. Changes required
by the obsolescence of components of the S-BTS shall be made by Contractor at
Contractor's sole expense.
C. A change request from MSV must be identified as such, must be made or
confirmed in writing, and must be signed by the responsible officer identified
in Article 24 hereof, entitled Responsible Officers. If any other conduct by the
responsible officer or any other representative of MSV is construed by
Contractor as possibly constituting a change request or an interpretation of the
Contract requirements inconsistent with Contractor's understanding of those
requirements, Contractor shall promptly notify MSV and request clarification.
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D. Within thirty (30) days after receiving a change request from MSV,
Contractor shall submit to MSV a written contract change notice in accordance
with the requirements of Paragraph D of this Article. On a case-by-case basis,
Contractor may request a longer period to prepare the contract change notice.
MSV shall not unreasonably withhold its consent to a request for such a longer
period, taking into account the nature of the change request, but MSV may also
take into account the impact of such an extension on the performance schedule.
E. Whether submitted in response to a change request initiated by MSV, or
initiated by Contractor, the contract change notice shall itemize, in a
reasonable format specified by MSV, any impact that the change would have on the
technical requirements, price, performance schedule, or other terms and
conditions of this Contract. Where appropriate, the contract change notice shall
also suggest any revised language for the Contract, including any of its
Exhibits that would be necessary to implement the change.
F. If the cost of any materials that would be made obsolete as a result of a
change is included in Contractor's claim for adjustment:
(1) To the extent that such materials have resale, reuse, or salvage
value to Contractor or its subcontractors or suppliers, MSV shall be entitled to
a credit.
(2) If such materials have no such resale, reuse, or salvage value,
MSV shall have the right to prescribe their manner of disposition.
G. After MSV receives a sufficiently detailed contract change notice, and
after any negotiations with respect to the adjustments claimed by Contractor,
the following outcomes are possible:
(1) MSV may decide not to proceed with implementation of the change.
(2) MSV may decide to implement the change, in which case:
(a) If the Parties have reached agreement about the adjustments
to be made in the Contract, Contractor shall proceed with
implementation as agreed.
(b) If the Parties are unable to reach such an agreement, the
provisions of Article 21 hereof, entitled Dispute
Resolution, shall apply.
(c) Pending any negotiations and/or arbitration, MSV may direct
Contractor to proceed with implementation of the change,
subject to any adjustments subsequently agreed or awarded.
H. If such change request causes an increase or decrease in the cost or the
time required for completion of the Work to be provided, or otherwise affects
any other provision of this Contract, such response shall provide a non-binding
preliminary estimate of the impact of the change request on the Purchase Price
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(including costs associated with processing of the change request), Delivery
Schedule and other provisions of this Contract. Contractor shall use
commercially reasonable efforts to propose and perform the changed Work in a
manner that mitigates MSV's costs and any Delivery Schedule delays. Any proposed
increase to the price or extension of the Delivery Schedule shall be reasonable
and proposed in good faith and shall not exceed the expected actual direct and
indirect cost (on a fully allocable basis in accordance with U.S. GAAP) to be
incurred by Contractor, plus ten percent (10%) and the actual time required by
Contractor to implement the change. Changes required by the obsolescence of
components of the S-BTS shall be made by Contractor at Contractor's cost and
expense. If MSV desires to proceed with the change after receipt of Contractor's
preliminary estimate, MSV and Contractor shall cooperate and negotiate in good
faith and agree in a timely manner to equitable adjustments in the Purchase
Price, Delivery Schedule, Milestone Dates and other affected provisions of this
Contract, and this Contract shall be amended in writing accordingly in
accordance with Article 30.5.
I. In the event the Parties fail to agree on an adjustment (upward or
downward) to the Purchase Price, Delivery Schedule or other affected provisions
of this Contract with respect to a requested change, then MSV may direct
Contractor to proceed with the requested change, in which case, Contractor shall
proceed with the directed change. The Parties shall continue to negotiate the
adjustments to the Contract, and pending completion of such negotiations or
dispute resolution, and as a condition for Contractor being obligated to proceed
with the directed change, the Parties in good faith shall agree upon and
establish a reasonable payment schedule for the equitable adjustment in
accordance with the estimate provided by Contractor, to compensate Contractor
for the Work performed pursuant to the directed change, which payment schedule
shall be adjusted as part of the negotiated settlement for the directed change.
If the Parties are unable to agree upon an equitable adjustment resulting from a
change order, either Party may submit the matter for determination under Article
21 (Dispute Resolution).
J. MSV may also direct Contractor to proceed with implementation of a change
prior to preparation of a complete contract change notice, subject to any
adjustments subsequently agreed or awarded.
K. MSV's right to direct Contractor to proceed with implementation of a
change pursuant to this Article 22 shall be subject to Contractor's ability to
do so, taking into account the resources, facilities, supplies, and services
available to it, and may also be subject to a stipulated financial limit.
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Article 23. Assignment of Contract or Rights
This Contract is not assignable by either Party without the prior written
consent of the other Party hereto. Notwithstanding the foregoing, either Party
may assign or transfer its interest herein, either through assignment or
novation, to an actual or de facto successor-in-interest arising pursuant to a
merger, acquisition, sale of assets, consolidation or other similar corporate
reorganization or sale without the prior written consent of the other Party.
Notwithstanding the foregoing, MSV may assign all of its rights and obligations
with respect to Intellectual Property licensed, assigned or transferred
hereunder, to its wholly owned subsidiary, ATC Technologies LLC.
Article 24. Insurance Requirements
Contractor represents that it has procured or shall procure and maintain at all
times during its performance of this Contract commercially reasonable insurance
coverages including property insurance in an amount not less than replacement
value of the Deliverable Items (until risk passes to MSV), worker's
compensation, professional liability and errors and omissions, comprehensive
automobile liability and such other insurance as is adequate to cover
Contractor's potential liabilities under this Contract and applicable law. Upon
request Contractor shall procure evidence that such insurance has been effected
and is being maintained.
Article 25. Responsible Officers
The responsible officers of the Parties may be changed from time to time by
notice to the other Party. Until further notice, the responsible officer for MSV
shall be Xxxxxxx Xxxxxxx, Vice-President and for Contractor Xxxxx Xxxxxxx,
Vice-President, Corporate Development.
Article 26. Communications
A. All notices to be provided to MSV or Contractor pursuant to this Contract
shall be sent for the attention of the officers referred to below at the
following addresses:
Mobile Satellite Ventures XX Xxxxxx Network Systems, LLC.
00000 Xxxxxxxxx Xxxx. 00000 Xxxxxxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Sr. VP, General Counsel Attention: VP, General Counsel and
and Secretary Secretary
B. All communications pertinent to this Contract shall be made or confirmed
in writing and sent by overnight courier or facsimile.
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Article 27. Order of Precedence
Should any conflict arise between the terms and conditions of this Contract, and
the Statement of Work, S-BTS Technical Specification or the Price and Payment
Plan, the terms and conditions of this Contract shall take precedence. Should
any conflict arise then the order of precedence shall be this Contract, the
Statement of Work over the S-BTS Technical Specification, followed by the Price
and Payment Plan.
Article 28. Warranty, Support and Maintenance Option
In accordance with Section 8.0 of the Statement of Work, Contractor shall, if
purchased by MSV, provide Support and Maintenance during the Initial Warranty
Period at the pricing set out in the Price and Payment Plan and shall provide
subsequent Annual Warranty, Support and Maintenance for additional years if
purchased by MSV at the price established in the Price and Payment Plan.
Article 29. Limitation of Liability
A. In any event and not withstanding anything contained within this Contract,
Contractor's and MSV's liability in contract, tort (including negligence or
breach of statutory duty) or otherwise arising by reason of, or in connection
with, this Contract (except in relation to death or personal injury) shall be
limited to the Purchase Price in respect of any and all incidents arising in
aggregate under this Contract.
B. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL,
COLLATERAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES,
LOSS OF SAVING, LOSS OF USE, INTERRUPTIONS OF BUSINESS, AND CLAIMS OF CUSTOMERS)
WHETHER SUCH DAMAGES OCCUR PRIOR OR SUBSEQUENT TO, OR ARE ALLEGED AS A RESULT
OF, TORTIOUS CONDUCT OR BREACH OF ANY OF THE PROVISIONS OF THIS CONTRACT, OR
NONPERFORMANCE OR FAILURE TO PERFORM UNDER THIS CONTRACT, EVEN IF MSV OR
CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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Article 30. Entire Agreement
This Contract as well as the Statement of Work, the S-BTS Technical
Specification and the Price and Payment Plan, to be agreed to and executed
contemporaneously, constitutes the entire agreement between the Parties with
respect to the subject matter hereof, and supersedes all prior or
contemporaneous correspondence, representations, proposals, negotiations,
understandings, or agreements of the Parties, whether oral or written. The
Parties also hereby acknowledge that there are no collateral contracts between
them with respect to the subject matter hereof. This Contract may be signed in
counterparts and each original counterpart shall be deemed binding on each Party
collectively and individually.
IN WITNESS WHEREOF, the Parties hereto have signed this Contract in duplicate.
MOBILE SATELLITE VENTURES LP, XXXXXX NETWORK SYSTEMS, LLC.
by its general partner,
Mobile Satellite Ventures GP Inc.
BY: BY:
"Xxxxxxxxx X. Good" "Xxxxxxx Xxxx"
----------------- ------------
Typed Name: Typed Name:
Xxxxxxxxx X. Good Xxxxxxx Xxxx
Title: Vice-Chairman, CEO and President Title:Chairman and CEO
Date: November "3" , 2006 Date: November "2" , 2006
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