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EXHIBIT 10.2
Certain portions of this document have been omitted and filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
CONTRACT BETWEEN
ECHOSTAR ORBITAL CORPORATION
AND
SPACE SYSTEMS/LORAL, INC.
ECHOSTAR 8 SATELLITE PROGRAM
(110(DEGREE) X.X.)
This document contains data and information proprietary to Space Systems/Loral,
Inc. This data shall not be disclosed, disseminated or reproduced, in whole or
in part, without the express prior written consent of Space Systems/Loral except
as otherwise provided in this Contract.
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TABLE OF CONTENTS
PREAMBLE.................................................................................................3
RECITALS.................................................................................................4
ARTICLE 1 - DEFINITIONS..................................................................................5
ARTICLE 2 - SCOPE OF WORK................................................................................9
ARTICLE 3 - DELIVERABLE ITEMS AND DELIVERY SCHEDULE.....................................................10
ARTICLE 4 - PRICE.......................................................................................11
ARTICLE 5 - PAYMENTS....................................................................................12
ARTICLE 6 - PURCHASER-FURNISHED ITEMS...................................................................16
ARTICLE 7 - COMPLIANCE WITH U.S. EXPORT LAWS AND DIRECTIVES.............................................18
ARTICLE 8 - ACCESS TO WORK IN PROGRESS..................................................................19
ARTICLE 9 - SATELLITE PRE-SHIPMENT REVIEW (SPSR)........................................................22
ARTICLE 10 - SATELLITE ACCEPTANCE.......................................................................25
ARTICLE 11 - ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER THAN SATELLITES..........................26
ARTICLE 12 - DELIVERY, TITLE AND RISK OF LOSS...........................................................29
ARTICLE 13 - XXX........................................................................................29
ARTICLE 14 - INTENTIONALLY DELETED......................................................................29
ARTICLE 15 - WARRANTY ..................................................................................30
ARTICLE 16 - CHANGES ...................................................................................34
ARTICLE 17 - FORCE MAJEURE..............................................................................35
ARTICLE 18 - PURCHASER DELAY OF WORK....................................................................36
ARTICLE 19 - PATENT INDEMNITY...........................................................................37
ARTICLE 20 - INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE............................................39
ARTICLE 21 - TERMINATION FOR CONVENIENCE................................................................41
ARTICLE 22 - XXX........................................................................................43
ARTICLE 22A - XXX ......................................................................................43
ARTICLE 23 - DEFAULT ...................................................................................44
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ARTICLE 24 - INTENTIONALLY DELETED......................................................................48
ARTICLE 25 - ARBITRATION................................................................................48
ARTICLE 26 - INTER-PARTY WAIVER OF LIABILITY FOR A LAUNCH...............................................50
ARTICLE 27 - RESERVED .................................................................................51
ARTICLE 28 - RESERVED .................................................................................51
ARTICLE 29 - XXX........................................................................................51
ARTICLE 30 - RESERVED ..................................................................................51
ARTICLE 31 - RESERVED ..................................................................................51
ARTICLE 32 - RESERVED ..................................................................................51
ARTICLE 33 - GROUND STORAGE.............................................................................52
ARTICLE 34 - LIMITATION OF LIABILITY....................................................................54
ARTICLE 35 - DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION.........................................55
ARTICLE 36 - RIGHTS IN DATA.............................................................................58
ARTICLE 37 - PUBLIC RELEASE OF INFORMATION..............................................................59
ARTICLE 38 - NOTICES ...................................................................................60
ARTICLE 39 - RISK MANAGEMENT............................................................................62
ARTICLE 40 - ORDER OF PRECEDENCE........................................................................63
ARTICLE 41 - GENERAL ...................................................................................64
ARTICLE 42 - ATTACHMENTS................................................................................67
ARTICLE 43 - TERMINATION RIGHT..........................................................................68
ARTICLE 44 - COOPERATION REGARDING SPOT BEAMS...........................................................69
ARTICLE 45 - MASS PENALTY...............................................................................70
ARTICLE 46 - KEY PERSONNEL .............................................................................70
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PREAMBLE
This Contract is entered into as of February 4, 2000 (the "Effective Date of
Contract" or "EDC") between Echostar Orbital Corporation, organized and existing
under the laws of the State of Colorado having an office and place of business
at 0000 Xxxxx Xxxxx Xx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Purchaser") and Space Systems/Loral, Inc., a corporation organized and existing
under the laws of the State of Delaware, having an office and place of business
at 0000 Xxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Contractor").
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RECITALS
WHEREAS, Purchaser desires to procure one (1) communications satellite, known as
EchoStar 8, to be delivered to the Launch Site, all required ground equipment
and support and training services, to the extent and subject to the terms and
conditions set forth herein, and
WHEREAS, Contractor is willing to furnish such Satellite, ground equipment and
support and training services, to the extent and subject to the terms and
conditions set forth herein, in consideration of the price and other valid
consideration.
NOW, THEREFORE, the Parties hereto agree as follows:
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ARTICLE 1 - DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the following
meanings:
1.1 "ACCEPTANCE" (i) with respect to a Satellite shall be as provided for
in Article 10, and (ii) with respect to any Deliverable Item other than
a Satellite shall be as provided for in Article 11.
1.2 "ADDITIONAL SATELLITE" has the meaning set forth in Article 29.
1.3 "CONTRACT" means the articles of this executed Contract, its Exhibits
and its Attachment(s), as may be amended from time to time in
accordance with the terms hereof.
1.4 "CONTRACTOR" has the meaning set forth in the preamble and any
successor or assignee permitted hereunder.
1.5 "DELIVERABLE DATA" means the data and documentation required to be
delivered to Purchaser as specified in the Statement of Work.
1.6 "DELIVERABLE ITEM" means any of the items listed in Article 3.1, and
any Additional Satellite or other items ordered by Purchaser pursuant
to Article 29, and, collectively, the "DELIVERABLE ITEMS".
1.7 "DELIVERY" (i) with respect to a Satellite shall be as provided for in
Article 12.1, and (ii) with respect to any Deliverable Item other than
a Satellite shall be as provided for in Article 12.2.
1.8 "EFFECTIVE DATE OF CONTRACT" or "EDC" means the effective date of this
Contract as specified in the preamble.
1.9 "FCC" means the Federal Communications Commission or any successor
agency or governmental authority.
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1.10 "FIRM FIXED PRICE" has the meaning set forth in Article 4.1.
1.11 "FORCE MAJEURE" has the meaning set forth in Article 17.
1.12 "GROSS NEGLIGENCE" means reckless disregard for the rights of others
which very closely approaches intentional wrongdoing or other actions
(or failures to act) which very closely approach intentional
wrongdoing.
1.13 "IN-ORBIT TESTING" or "IOT" means the testing of the Satellite on-orbit
in accordance with the Program Test Plan.
1.14 "INTELLECTUAL PROPERTY CLAIM" has the meaning set forth in Article 19.
1.15 "INTENTIONAL IGNITION" means, with respect to the Satellite, the
official time designated by the Launch Agency during the launch
sequence when the initial motors of the Launch Vehicle are ignited for
the purpose of Launch following a planned countdown.
1.16 "LAUNCH" means, with respect to the Satellite, Intentional Ignition
followed by Lift-Off.
1.17 "LAUNCH AGENCY" means the provider responsible for conducting the
Launch Services for the Satellite.
1.18 "LAUNCH SERVICES" means those services provided by the Launch Agency
pursuant to the Launch Services Agreement.
1.19 "LAUNCH SERVICES AGREEMENT" or "LSA" means the contract between
Purchaser and the Launch Agency which provides for Launch Services for
the Satellite, as such contract may be amended from time to time in
accordance with its terms.
1.20 "LAUNCH SITE" means the location that will be used by the Launch Agency
for purposes of launching the Satellite.
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1.21 "LAUNCH SUPPORT" or "LAUNCH SUPPORT SERVICES" means those services
specified in the Statement of Work to be provided by Contractor in
support of Launch.
1.22 "LAUNCH VEHICLE" means the launch vehicle selected by Purchaser and
used for Launch of the Satellite, which is baselined to be an Atlas
launch vehicle, unless changed under Article 29.4.
1.23 "LIBOR" means the rate of interest per annum, at any relevant time, at
which thirty (30) day U.S. dollar deposits are offered at such time in
the London interbank market.
1.24 "LIFT-OFF" means, with respect to the Satellite, physical separation of
the Launch Vehicle from the ground support equipment following
Intentional Ignition due to the Launch Vehicle rising under its own
power for the purpose of launching the Satellite.
1.25 "MISSION OPERATIONS SUPPORT SERVICES" means the orbit-raising, IOT and
related services specified in the Statement of Work to be performed by
Contractor for a Satellite.
1.26 "NSP" means not separately priced.
1.27 "PARTY" or "PARTIES" means Purchaser, Contractor or both, as the
context requires.
1.28 "PAYMENT PLAN" means the payment plan for the applicable Deliverable
Item, attached as Attachment A.
1.29 "PERFORMANCE SPECIFICATION" means the Satellite performance
specification attached as Exhibit B, as such Exhibit may be amended
from time to time in accordance with the terms of this Contract.
1.30 "PMO" means the Purchaser's program management office.
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1.31 "PRODUCT ASSURANCE PROGRAM PLAN" means the product assurance program
plan attached as Exhibit C, as such Exhibit may be amended from time to
time in accordance with the terms of this Contract.
1.32 "PROGRAM TEST PLAN" means the Satellite program test plan attached as
Exhibit D, as such Exhibit may be amended from time to time in
accordance with the terms of this Contract.
1.33 "PROPRIETARY INFORMATION" has the meaning set forth in Article 35.
1.34 "PURCHASER" has the meaning set forth in the preamble and any successor
or assignee permitted hereunder.
1.35 "SATELLITE" means the communications satellite that is to be
manufactured by Contractor pursuant to this Contract.
1.36 "SATELLITE ANOMALY" means, with respect to any Satellite, any
post-Launch occurrence that has or could have an impact on the
Satellite's health or performance of such Satellite.
1.37 "SATELLITE PRE-SHIPMENT REVIEW" OR "SPSR" has the meaning set forth in
Article 9.
1.38 "SCF" means satellite control facility.
1.39 "STATEMENT OF WORK" or "SOW" means the statement of work attached as
Exhibit A, as such Exhibit may be amended from time to time in
accordance with the terms of this Contract.
1.40 "TT&C" means telemetry, tracking and control.
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ARTICLE 2 - SCOPE OF WORK
2.1 Provision of Services and Materials
Contractor shall provide the necessary personnel, material, services,
and facilities to: design, manufacture, test, and deliver to the
location set forth in Article 3.1 (or another location agreed upon
pursuant to Article 29), one (1) Satellite, together with all other
Deliverable Items referred to in Article 3.1, in accordance with the
following Exhibits, which are attached hereto and made a part hereof:
2.1.1 Exhibit A, Statement of Work, dated [TBD] (Document Reference No.
[TBD]);
2.1.2 Exhibit B, Satellite Performance Specification, dated [TBD] (Document
Reference No. [TBD]);
2.1.3 Exhibit C, Product Assurance Program Plan, dated [TBD] (Document
Reference No. [TBD]);
2.1.4 Exhibit D, Satellite Program Test Plan, dated [TBD] (Doc No. [TBD]).
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ARTICLE 3 - DELIVERABLE ITEMS AND DELIVERY SCHEDULE
3.1 Deliverable Items
Subject to the other terms and conditions of this Contract, the items
to be delivered under this Contract are specified in the table below
and the corresponding delivery schedules and locations are as follows:
ITEM DESCRIPTION DELIVERY SCHEDULE DELIVERY LOCATION
---- ----------- ----------------- -----------------
1. Satellite (EchoStar 8) December 20, 2001 To the Launch Site.
2. Deliverable Data Per SOW, Exhibit A PMO
3. Support and Training Per SOW, Exhibit A Contractor's facilities and
Purchaser's SCF
4. Ground Equipment Per SOW, Exhibit A Purchaser's SCF
Contractor shall, at its cost, use its reasonable best efforts to
obtain all U.S. and foreign Government approvals necessary to export
and import the Satellite, all Deliverables required hereunder, and the
individual components of the Satellite and such Deliverables.
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ARTICLE 4 - PRICE
4.1 Firm Fixed Price
The price to be paid by Purchaser to Contractor for the Deliverable
Items 1 through 4 set forth in Article 3.1 within the scope of work
detailed in the Statement of Work, shall be a firm fixed price of $XXX
(the "Firm Fixed Price"). The prices for those Deliverable Items
subject to an option under this Contract, if any, are described in the
particular Articles that set forth those options. The itemization of
the Firm Fixed Price is as follows:
Item Description Amount
---------------- ------
Satellite (EchoStar 8) $XXX
The item price for the Satellite includes all design, manufacturing,
tests, In Orbit Incentives, Deliverable Data, training, Launch Support
Services, Mission Operations Support Services, ground equipment and
shipment and transportation, all in accordance with the terms and
conditions of this Contract, as specified herein. The item price also
includes, and Contractor shall indemnify, defend and hold Purchaser,
its affiliates, directors, officers, employees, shareholders and agents
harmless from and against, all applicable taxes, duties and similar
liabilities imposed by any federal, state or local United States
governmental entity in connection with this Contract, except any tax on
the sale to Purchaser resulting from Purchaser's election to exercise
the Ground Storage option in Article 33.
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ARTICLE 5 - PAYMENTS
5.1 Payment Plan
Absent a bona fide dispute, payments by Purchaser to Contractor of the
Firm Fixed Price set forth in Article 4 and of the amounts for options,
if any, exercised by Purchaser pursuant to this Contract, shall be in
accordance with the Payment Plan applicable thereto for the Satellite.
5.2 Payment Conditions
5.2.1 Payments. Absent a bona fide dispute, all payments due from
Purchaser shall be paid no later than the date specified
therefor as set forth in the Payment Plan, provided that: (i)
Contractor submits to Purchaser an invoice with respect to
each such payment no later than thirty (30) days prior to such
due date; and (ii) Contractor completes the applicable
milestone set forth in Attachment A no later than five (5)
business days prior to such due date. Notwithstanding the
foregoing, in the event that Contractor does not deliver an
invoice to Purchaser at least thirty (30) days prior to such
due date and/or does not achieve the relevant milestone, or
provide a work-around that does not affect schedule and is
otherwise acceptable to Purchaser, at least five (5) business
days prior to such due date, Purchaser may suspend all
payments until such time as the relevant invoice is received
and milestone is completed. Within thirty (30) days following
Purchaser's receipt of the relevant invoice or five (5)
business days following Contractor's completion of the
relevant milestone, whichever occurs later, Purchaser shall
pay Contractor for all payments that were required to have
been made but were not as a result of the suspension.
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5.2.2 Milestones. Notwithstanding the milestones set forth in
Attachment A, if it becomes reasonably clear that problems
with deliverables are reasonably likely to cause schedule
delays, then all payments may be suspended, at Purchaser's
option, and the date for payment of each subsequent payment
delayed, by an amount of time equal to the difference between
the originally scheduled delivery date for the Satellite set
forth in Article 3 and the revised forecast delivery date. In
the event that Contractor subsequently recovers all or a
portion of the originally scheduled delivery date for the
Satellite, payments will again be revised to reflect that
recovery. Further, if, following completion of a milestone, a
problem arises which requires rework of elements of the
milestone, then payments may be suspended, at Buyer's option,
until the milestone is again complete.
5.2.3 Non-Warranty Payments. Absent a bona fide dispute, all amounts
payable to Contractor with respect to non-warranty work
performed pursuant to Article 15.3 shall be paid no later than
thirty (30) days after submission of an invoice by Contractor
certifying that such non-warranty work has been completed.
5.2.4 Obligation to Pay. The failure of Contractor to deliver any
invoice required hereunder shall not affect Purchaser's
obligation hereunder to make any payments to Contractor. If
Contractor shall not have delivered any invoice required
hereunder within the time specified therefor, the relevant
payment due from Purchaser shall be payable thirty (30) days
after receipt of such invoice.
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5.3 Late Payment
In the event that any payment to Contractor is not made when due
hereunder, without prejudice to Contractor's other rights and remedies
under this Contract, at law or in equity, Purchaser shall pay
Contractor interest at the rate of LIBOR + XXX until such time as
payment is made. If such payment is not made by the date thirty (30)
days after the date due hereunder, without prejudice to Contractor's
other rights and remedies under this Contract, at law or in equity,
Contractor may elect to cease performance of its obligations under this
Contract, without prejudice or penalty. In such case, if Contractor
subsequently resumes performance in lieu of termination pursuant to
Article 23.6, the schedule, price and other affected provisions of this
Contract shall be modified to compensate Contractor for its added costs
(and otherwise account for the impacts on Contractor) associated with
such work stoppage.
5.4 Invoices
Invoices required to be delivered by Contractor hereunder shall be
submitted to Purchaser (original plus one (1) copy) at the following
address:
EchoStar Orbital Corporation
0000 Xxxxx Xxxxx Xx
Xxxxxxxxx, XX 00000
ATTN.: Xxxxx Xxxxxx
(with copies to Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxx)
or to such other address as Purchaser may specify in writing to
Contractor.
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5.5 Payment Bank
All payments made to Contractor hereunder shall be in U.S. currency and
shall be made by electronic funds transfer to the following account:
BANK OF AMERICA
SPACE SYSTEMS/LORAL, INC.
ACCOUNT XX. 00-00000
XXXXXXX, XXXXXXXX
ABA #000-000-000
or by check to:
Space Systems/Loral
0000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
or to such other account or address as Contractor may specify in
writing to Purchaser.
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ARTICLE 6 - PURCHASER-FURNISHED ITEMS
6.1 Purchaser-Furnished Support
To enable Contractor to perform Launch Support and Mission Operations
Support Services, Purchaser shall timely make available to Contractor
the Purchaser-furnished equipment, facilities and services described in
the Statement of Work. Such equipment, facilities and services shall be
in good working condition and adequate for the required purpose and
shall be made available free of charge for Contractor's use (including
Acceptance inspection pursuant to Article 11) during the period
commencing sixty (60) days prior to such Launch and continuing through
completion of the IOT review. Purchaser and Contractor will conduct an
interface meeting approximately one hundred eighty (180) days prior to
such Launch to confirm the availability and adequacy of
Purchaser-furnished equipment, facilities and services.
6.2 Communications Authorizations
Purchaser shall be responsible, at its cost and expense, for preparing,
coordinating and filing all applications for licenses with the FCC, if
required to do so, for the launch and operation of the Satellite.
Contractor shall timely provide Purchaser with all reasonable
assistance, at no additional cost to Purchaser, requested by Purchaser
in connection with Purchaser's performance of the above-specified
tasks, and in connection with the filing of any technical filings
required to be made by Purchaser with the FCC.
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6.3 Radio Frequency Coordination
Purchaser shall be responsible for the timely preparation and
submission of all filings required by the International
Telecommunication Union (or any successor agency thereto) regarding
radio frequency and orbital position coordination. Such filings shall
be made in accordance with the Radio Regulations of the International
Telecommunication Union (or any successor agency). Contractor shall
timely provide Purchaser with all reasonable assistance, at no
additional cost to Purchaser, requested by Purchaser in connection with
Purchaser's performance of the above-specified tasks.
6.4 Satellite Performance Data
In the event of a Satellite Anomaly that occurs during the life of a
Satellite, Purchaser shall timely provide Contractor with or give
Contractor access to any data Contractor may reasonably require to
investigate or correct (if Contractor is able to do so) such Satellite
Anomaly or make or settle any insurance claim relating to such
Satellite Anomaly.
6.5 Late Delivery of Purchaser-Furnished Items or Services
The late delivery of Purchaser-furnished items, individually or
combined, shall be considered an event beyond the reasonable control of
Contractor, and Contractor shall be entitled to a reasonable adjustment
in price, schedule, and other affected terms for such late delivery.
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ARTICLE 7 - COMPLIANCE WITH U.S. EXPORT LAWS AND DIRECTIVES
7.1 Technical Information, Deliverable Data and Technical Services
7.1.1 Any obligation of either Party hereunder to provide technical
information, Deliverable Data or technical services to the
other Party or its representatives shall be subject to
applicable U.S. Government export control and security laws,
regulations, policies and license conditions. The Parties
shall work cooperatively and in good faith to implement this
Contract consistent with such laws, regulations, policies and
license conditions.
7.1.2 If and to the extent required by U.S. law, the Parties and/or
their representatives shall enter into U.S.
Government-approved agreement(s), separate from this Contract,
governing the Party's provision of technical information,
Deliverable Data or technical services in connection with this
Contract.
7.2 No Retransfer
The Parties shall not transfer to any "foreign person", as defined in
the International Traffic in Arms Regulations (22 C.F.R. Section 120.1)
technical information, Deliverable Data or technical services furnished
hereunder, except as expressly authorized by the U.S. Government in
accordance with U.S. export control laws. THE PARTIES UNDERSTAND AND
WARRANT THAT THEY SHALL NOT RE-EXPORT, TRANSFER OR DIVERT ANY ITEM
EXPORTED UNDER OR IN CONNECTION WITH THIS CONTRACT TO ANY "FOREIGN
PERSON" WITH A NATIONALITY OTHER THAN CONTRACTOR'S OR PURCHASER'S,
RESPECTIVELY, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE U.S.
GOVERNMENT.
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ARTICLE 8 - ACCESS TO WORK IN PROGRESS
8.1 Work in Progress at Contractor's Plant
Subject to Article 7 and Article 8.4 and to compliance with
Contractor's safety and security regulations, Purchaser's employees
shall be allowed access to work being performed at Contractor's
facility for the Satellite and other Deliverable Items, for the purpose
of observing the progress of such work and otherwise confirming
Contractor's compliance with this Contract.
8.2 Work in Progress at Subcontractors' Plant
Subject to Article 7 and Article 8.4, to the extent permitted by
Contractor's subcontractors supplying services or goods in connection
with the Satellite and subject to each such subcontractor's safety and
security regulations, Contractor shall allow Purchaser's employees
access to work being performed with respect to the Satellite in each
such subcontractor's plants for the purpose of observing the progress
of such work and otherwise confirming Contractor's compliance with this
Contract, subject to the right of Contractor to accompany Purchaser on
any such visit to a subcontractor's plant. Contractor will use
reasonable efforts to obtain permission for such access to
subcontractor's facilities.
8.3 On-Site Facilities for Purchaser's Personnel
Subject to Article 7 and Article 8.4, for the purpose of monitoring the
progress of the work to be performed by Contractor hereunder and
otherwise confirming Contractor's compliance with this Contract,
Contractor shall provide private office facilities at or proximate to
Contractor's plant (which private office facilities shall in all cases
at least be co-located with Contractor's program management office) for
two (2) resident Purchaser personnel (or Purchaser's duly appointed
consultants and agents, subject to the prior approval of Contractor,
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which approval shall not be unreasonably withheld or delayed) through
Acceptance of the last Satellite ordered hereunder. The office
facilities to be provided shall include a reasonable amount of private
office space, office furniture, local and reasonable long distance
telephone service, access to copy machines and access to facsimile
machines, to the extent necessary to enable Purchaser personnel to
monitor the progress of work and otherwise confirm Contractor's
compliance with this Contract.
8.4 Competition/Foreign Persons as Purchaser Representatives
Purchaser's representatives, consultants and agents shall not be in
direct competition with Contractor, meaning they shall not currently be
employed by companies or entities that are in the business of
manufacturing communication satellites. Purchaser shall notify
Contractor in writing of the name, title or function, business
relationship, employer and such other information as may be reasonably
requested by Contractor, with respect to each of its intended
representatives, consultants and agents, and cause each such
representative, consultant and agent to execute a confidentiality
agreement directly with Contractor in form and substance reasonably
satisfactory to Contractor and containing terms substantially the same
as those set forth in Article 35. Contractor may deny access to
Contractor provided office facilities to any representative, consultant
or agent of Purchaser upon Contractor's reasonable determination that
such consultant or agent is, by reason of its business or affiliations,
in direct competition with Contractor.
Contractor shall apply for and, once issued, maintain all U.S.
Government export licenses and approvals needed for Purchaser's
personnel, representatives, agents and consultants who are citizens of
Purchaser's country (if other than the U.S.), to access Contractor
facilities or technical data in connection with the performance of this
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Contract. Purchaser shall cooperate with Contractor and provide the
support necessary for Contractor to apply for and maintain such export
licenses and approvals, and shall promptly notify Contractor of any
occurrence or change in circumstances of which it becomes aware that is
relevant to or affects such export license and approvals. IN NO EVENT
SHALL CONTRACTOR BE OBLIGATED UNDER THIS CONTRACT TO PROVIDE ACCESS TO
CONTRACTOR FACILITIES, TO TRANSFER ANY TECHNICAL INFORMATION OR
DELIVERABLE DATA OR TO PROVIDE ANY TECHNICAL SERVICES, TO ANY PERSON
EXCEPT IN COMPLIANCE WITH APPLICABLE U.S. EXPORT CONTROL LAWS,
REGULATIONS, POLICIES AND LICENSE CONDITIONS, AS CONSTRUED BY
CONTRACTOR.
8.5 Interference with Operations
Purchaser shall exercise its rights under this Article 8 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.
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ARTICLE 9 - SATELLITE PRE-SHIPMENT REVIEW (SPSR)
9.1 Purchaser to Review
Purchaser shall conduct a review of each Satellite prior to shipment by
Contractor to the Launch Site in accordance with the terms of this
Article 9 and the Statement of Work (each a "Satellite Pre-Shipment
Review" or "SPSR").
9.2 Time, Place and Notice of SPSR; Failure to Conduct
Each SPSR shall take place at Contractor's facility. Contractor shall
notify Purchaser in writing at least thirty (30) days prior to the date
that each Satellite shall be available for SPSR, which shall be the
scheduled date for commencement of such SPSR. If Purchaser cannot
commence such SPSR on such scheduled date, Contractor shall make
reasonable efforts to accommodate Purchaser's scheduling requirements.
9.3 Conduct and Purpose of SPSR
Each SPSR shall be conducted in accordance with Section 2.2.3 of the
Statement of Work. The purpose of each SPSR shall be to review test
data and analyses for the subject Satellite to determine whether such
Satellite meets applicable Performance Specification requirements and
is therefore ready for shipment to the Launch Site.
9.4 Waivers or Pending Waivers
At the earliest possible time, but at least ten (10) days before the
commencement of the SPSR for the Satellite or the Acceptance inspection
for any Deliverable Item pursuant to Article 11, Contractor shall
submit to Purchaser any request for a waiver of, or deviation from,
provisions(s) of the Performance Specification applicable to the
Satellite or Deliverable Item. Each such waiver or deviation approved
by Purchaser shall be deemed an amendment to the Performance
Specification permitting such waiver thereof, or deviation therefrom,
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effective on or after the date of such approval for the Satellite or
Deliverable Item. Purchaser shall, in keeping with customary industry
practice, consider each waiver or deviation request in good faith and
shall not unreasonably withhold or delay its consent to any such
request.
9.5 Purchaser's Inspection Agents
Purchaser may, subject to prior written notice to Contractor, cause any
agent designated by Purchaser to observe the SPSR pursuant to this
Article 9; provided, however, that the provisions of Article 7 and
Article 8.4 shall apply to any such agent.
9.6 SPSR Results
Within a reasonable time after completion of the SPSR for the
Satellite, Purchaser shall notify Contractor in writing of the results
of the SPSR pursuant to this Article 9 with respect to the Satellite.
Provided Purchaser is in compliance with its contractual obligations
hereunder, such Satellite shall thereupon be prepared and shipped to
the Launch Site for Launch. In the event that such SPSR discloses any
non-conformance of the Satellite to the requirements of the Performance
Specification not the subject of any waivers or deviations approved by
Purchaser pursuant to Article 9.4, Purchaser's notice shall state each
such non-conformance (with reference to the applicable requirement of
the Performance Specification deemed not met), and Contractor shall
correct or repair each such non-conformance and resubmit such Satellite
for SPSR in accordance with this Article 9 as to each corrected or
repaired element.
9.7 Inspection Costs Borne by Purchaser
All costs and expenses incurred by Purchaser and its agents in the
performance of this Article 9, including travel and living expenses,
shall be borne solely by Purchaser.
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9.8 Correction of Deficiencies after SPSR
If at any time following the SPSR for a Satellite, and prior to Launch,
such Satellite fails to meet the Performance Specification, as may be
modified as of such time pursuant to Article 9.4, Contractor shall
promptly correct such deficiencies at its own cost and expense.
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ARTICLE 10 - SATELLITE ACCEPTANCE
10.1 Satellite Acceptance
Acceptance of the Satellite by Purchaser shall occur automatically upon
Launch of the Launch Vehicle for the Satellite.
10.2 In-Orbit Test (IOT) Services
Thirty (30) days prior to Launch of the Satellite, Contractor shall
notify Purchaser of the IOT schedule. Purchaser may observe IOT at
Purchaser's or Contractor's location, at Purchaser's election, subject
to applicable U.S. Government or Contractor security or export
restrictions.
When, in the reasonable assessment of Contractor, the IOT review has
been completed for a Satellite, Contractor shall submit the IOT results
to Purchaser.
Within a reasonable time after Contractor provides the IOT results and
certification to Purchaser, Contractor and Purchaser shall hold a
Satellite review as defined in the SOW.
Contractor may elect to conduct the IOT eclipse test set forth in the
Program Test Plan during the eclipse season following completion of
IOT. The results of the later eclipse test will be provided to
Purchaser for Satellite performance characterization and insurance
purposes only.
Contractor agrees to fly the Satellite until the earlier to occur of:
(i) all material anomalies being resolved; (ii) insurance for all
material anomalies being paid to Purchaser; or (iii) Purchaser
informing Contractor that it desires to use the Satellite for
commercial purposes (provided that, in such instance, Contractor shall
continue to fly the Satellite until such time as all material anomalies
are fully understood by both parties and Contractor has properly
trained Purchaser how to fly the Satellite in such anomalous
condition).
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ARTICLE 11 - ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS
OTHER THAN SATELLITES
11.1 Inspection of Deliverable Items of Hardware Other Than Satellites
With respect to each Deliverable Item of hardware other than
Satellites, Purchaser shall perform Acceptance inspection within ten
(10) business days after Contractor has notified Purchaser that such
Deliverable Item has arrived at the location designated for delivery
thereof in Article 3.1. Such Acceptance inspection shall be conducted
in accordance with the procedures described in the Statement of Work.
The purpose of the Acceptance inspection shall be to determine whether
each such Deliverable Item meets applicable Performance Specification
requirements as of the date of such delivery, as such requirements may
have been modified pursuant to Article 11.3.
11.2 Purchaser's Inspection Agents
Purchaser may, upon giving prior written notice to Contractor, cause
any agent designated by Purchaser to conduct the Acceptance inspection
pursuant to this Article 11 in whole or in part; provided, however,
that the provisions of Article 7 and Article 8.4 shall apply to any
such agent and such agent shall comply with Contractor's safety and
security regulations.
11.3 Pending Waivers
Waivers of or deviations from the Performance Specification applicable
to any Deliverable Item subject to Acceptance inspection pursuant to
this Article 11 shall be addressed as set forth in Article 9.4.
11.4 Acceptance Inspection Results
Within a reasonable time after completion of Acceptance inspection
pursuant to this Article 11 for any Deliverable Item, Purchaser shall
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notify Contractor in writing of the results of such Acceptance
inspection. In the event that such Acceptance inspection demonstrates
conformity of such Deliverable Item to the applicable requirements of
the Performance Specification, such Deliverable Item shall be deemed
accepted by the Purchaser for all purposes hereunder ("Acceptance" with
respect to each such Deliverable Item other than a Satellite), and
Purchaser's notice shall so state. In the event that such Acceptance
inspection discloses any non-conformance of such Deliverable Item to
the applicable requirements of the Performance Specification,
Purchaser's notice shall detail each such non-conformance (with
reference to the applicable requirement of the Performance
Specification deemed not met), and Contractor shall correct or repair
such non-conformance and resubmit such Deliverable Item for Acceptance
inspection in accordance with this Article 11 as to each such corrected
or repaired element.
11.5 Inspection Costs Borne by Purchaser
All costs and expenses incurred by Purchaser or its agents in the
performance of this Article 11, including travel and living expenses,
shall be borne solely by Purchaser.
11.6 Warranty Obligations
In no event shall Contractor be released from any of its warranty
obligations applicable to any Deliverable Item other than the Satellite
as set forth in Article 15 as a result of such Deliverable Item having
been Accepted as set forth in this Article 11.
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11.7 Deliverable Data
Purchaser shall, within ten (10) business days of delivery by
Contractor to the location designated in Article 3.1 of Deliverable
Data requiring Purchaser approval pursuant to the Statement of Work,
notify Contractor in writing that such Deliverable Data has been
accepted in accordance with the Statement of Work ("Acceptance" with
respect to each such item of Deliverable Data), or advise Contractor in
writing that such Deliverable Data does not comply with the applicable
requirements of the Statement of Work, identifying each particular of
such non-compliance. Contractor shall promptly correct any
non-compliant aspect of such Deliverable Data described in such Notice
from Purchaser, and re-submit it to Purchaser for inspection pursuant
to this Article 11.7.
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ARTICLE 12 - DELIVERY, TITLE AND RISK OF LOSS
12.1 Satellites
Delivery of the Satellite shall occur, and risk of loss of, and title
to, the Satellite shall pass from Contractor to Purchaser, upon
Acceptance of such Satellite pursuant to Article 10.1.
EXCEPT WITH RESPECT TO WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY
CONTRACTOR, UPON AND AFTER LAUNCH OF THE LAUNCH VEHICLE FOR A
SATELLITE, CONTRACTOR'S SOLE FINANCIAL RISK, AND THE SOLE AND EXCLUSIVE
REMEDIES OF PURCHASER OR ANY PARTY ASSOCIATED WITH PURCHASER, WITH
RESPECT TO THE USE OR PERFORMANCE OF SUCH SATELLITE (INCLUDING WITH
RESPECT TO ANY ACTUAL OR CLAIMED DEFECT CAUSED OR ALLEGED TO BE CAUSED
AT ANY TIME BY CONTRACTOR OR ANY OF ITS SUBCONTRACTORS), SHALL BE AS
SET FORTH IN ARTICLES 4.1, 13, 15, 19 AND 20. IN ALL CASES CONTRACTOR'S
LIABILITY SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN
ARTICLE 34. CONTRACTOR MAKES NO WARRANTY AS TO THE PERFORMANCE OF ANY
LAUNCH VEHICLE.
12.2 Deliverable Items Other Than Satellites
Delivery and risk of loss of, and title to, each Deliverable Item of
hardware other than Satellites shall pass from Contractor to Purchaser
upon Acceptance of such Deliverable Item pursuant to Article 11.4.
Purchaser's rights in Deliverable Data are as set forth in Article 36.
ARTICLE 13 - XXX
XXX
ARTICLE 14 - INTENTIONALLY DELETED
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ARTICLE 15 - WARRANTY
15.1 Terms and Period of Warranty
15.1.1 Satellites. Contractor warrants that the Satellite delivered
under this Contract shall be manufactured in conformity with
the Performance Specification (as may be waived pursuant to
Article 9.4) applicable to the Satellite. Contractor's sole
obligation in fulfillment of this warranty after Launch is to
comply with Article 15.2.1. Contractor makes no warranty
regarding the performance of the Satellite from and after the
Launch of the Satellite.
15.1.2 Deliverable Items of Hardware Other Than Satellites.
Contractor warrants that each Deliverable Item of hardware
other than the Satellite delivered under this Contract shall
be manufactured in conformity with the Performance
Specification (as may be waived pursuant to Article 11.3)
applicable to such Deliverable Item and will be free from
defects in materials and workmanship during the period
commencing on the date of Acceptance of such Deliverable Item
pursuant to Article 11 and ending on the first anniversary
thereof.
15.1.3 Disclaimer. EXCEPT AND TO THE EXTENT PROVIDED IN ARTICLE 15.1
AND ARTICLE 15.4, CONTRACTOR HAS NOT MADE NOR DOES IT HEREBY
MAKE ANY REPRESENTATION OR WARRANTY, WHETHER WRITTEN OR ORAL,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY
OF DESIGN, OPERATION, CONDITION, QUALITY, SUITABILITY OR
MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR
PURPOSE, ABSENCE OF LATENT OR
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OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, WITH REGARD TO ANY
SATELLITE OR ANY OTHER DELIVERABLE ITEM.
15.2 Repair or Replacement
15.2.1 Satellite Anomalies.
Contractor shall investigate any Satellite Anomaly in any
Satellite arising during the life of the Satellite, and use
reasonable best efforts to correct any such Satellite Anomaly
that is correctable by Contractor from Purchaser's SCF using
the facilities and equipment available at such site.
CONTRACTOR SHALL HAVE NO LIABILITY TO PURCHASER OR TO THIRD
PARTIES ARISING FROM ANY ADVICE OR ASSISTANCE THAT CONTRACTOR
OR ANY SUBCONTRACTOR OR AGENT OF CONTRACTOR MAY PROVIDE IN
RESPECT OF THE SATELLITE AFTER LAUNCH, REGARDLESS OF CAUSE OR
LEGAL THEORY, INCLUDING NEGLIGENCE, EXCEPT WITH RESPECT TO
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY CONTRACTOR. IN ALL
CASES CONTRACTOR'S LIABILITY SHALL BE SUBJECT TO THE
LIMITATION OF LIABILITY SET FORTH IN ARTICLE 34.
15.2.2 Deliverable Items of Hardware Other Than Satellites.
During the period specified in Article 15.1.2 for any
Deliverable Item of hardware other than a Satellite, as
Purchaser's sole and exclusive remedy, any defect in such
Deliverable Item discovered by Purchaser shall be remedied by
Contractor at Contractor's expense by repair or replacement of
the defective component (at Contractor's
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election). For any such Deliverable Item, Contractor shall
determine if repair or replacement is required to be performed
at Contractor's plant. If required, Purchaser shall ship to
Contractor's designated facility any such Deliverable Item.
Contractor shall be responsible for the cost of shipment to
such facility in accordance with its standard commercial
practice (including any taxes and/or duties) of any such
Deliverable Item, and the cost of return shipment, in
accordance with its standard commercial practice, of any such
Deliverable Item once repaired or replaced to Purchaser at the
location designated therefor in Article 3.1. Risk of loss for
such Deliverable Item shall transfer to Contractor upon
delivery of such Deliverable Item to the shipping carrier by
Purchaser, and risk of loss shall transfer to Purchaser for
any such Deliverable Item once repaired or replaced pursuant
to this Article 15.2.2 upon receipt thereof by Purchaser at
the location designated therefor in Article 3.1. When
necessary, Contractor shall provide free of charge temporary
equipment to be used while a repair is being performed.
15.3 Use Conditions Not Covered by Warranty
With respect to Deliverable Items of hardware other than Satellites,
the warranty under this Article 15 shall not apply if adjustment,
repair, or parts replacement is required as a result, directly or
indirectly, of accident, unusual physical or electrical stress beyond
the unit's designed tolerances, negligence, misuse, failure of
environmental control prescribed in operations and maintenance manuals,
repair or alterations by any party other than Contractor or its agents,
or by causes other than normal and ordinary use. The warranty provided
pursuant to this Article 15 is conditioned upon Contractor being given
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access, if required, to Deliverable Items delivered at Purchaser's
facility in order to effect any repair or replacement thereof. If the
defect repaired or remedied by Contractor is not covered by the
warranty provided pursuant to this Article 15, Purchaser shall pay
Contractor the reasonable cost of such repair or replacement,
transportation charges, and a reasonable profit as determined by
Contractor. Such repair costs shall be invoiced to Purchaser pursuant
to the provisions of Article 5.
15.4 Warranty for Training and Services
Contractor warrants that the training and other services it provides to
Purchaser pursuant to this Contract will conform to reasonable industry
standards at the time such training or other services are provided. In
the event Contractor breaches this warranty, as Purchaser's sole
remedy, Contractor shall apply reasonable efforts to correct the
deficiencies in the provision of such training and other services where
it is practicable to do so.
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ARTICLE 16 - CHANGES
Purchaser may, in writing, request a change within the general scope of this
Contract to:
a) Order work in addition to the work provided for herein; or
b) Modify the whole or any part of the work provided for herein.
If such change request causes an increase or decrease in the cost, or the time
required for completion, of the work to be provided herein, or otherwise affects
any other provision of this Contract, Contractor shall provide Purchaser with a
non-binding preliminary estimate of the impact of the change request on the
Contract price (including costs associated with processing of the change
request), Delivery schedules and other provisions of this Contract. If Purchaser
desires to proceed with the change after receipt of Contractor's preliminary
estimate, Purchaser and Contractor shall negotiate and agree in a timely manner
to equitable adjustments in Contract price, Delivery schedules and other
affected provisions of this Contract, and this Contract shall be amended in
writing accordingly. Contractor shall have no obligation to proceed pursuant to
a change request prior to execution of such amendment.
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ARTICLE 17 - FORCE MAJEURE
Contractor and Purchaser shall not be responsible for late Delivery, delay of
the final completion date or nonperformance of its contractual obligations due
to Force Majeure. Force Majeure shall be any event beyond the reasonable control
of a Party or its suppliers and subcontractors and shall include, but not be
limited to: (1) acts of God; (2) acts of a public enemy; (3) acts of a
government in its sovereign capacity (including any action or inaction affecting
the import or export of items); (4) war and warlike events; (5) catastrophic
weather conditions such as hurricanes, tornadoes and typhoons; (6) fire,
earthquakes, floods, epidemics, quarantine restrictions, strikes, lockouts and
other industrial disputes, sabotage, riot and embargoes; (7) non-availability of
a Launch Vehicle or Launch Site for any reason beyond a Party's reasonable
control; and (8) other unforeseen and extraordinary events, which in every case
are beyond the reasonable control and without fault or negligence of a Party or
its suppliers and subcontractors ("Force Majeure"). Upon the occurrence of Force
Majeure, an equitable adjustment shall be negotiated in the schedule and other
portions of this Contract affected by Force Majeure. The Party affected by a
Force Majeure event shall provide reasonable notice to the other Party of a
Force Majeure event.
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ARTICLE 18 - PURCHASER DELAY OF WORK
Except in the case of a Force Majeure event, if the performance of all or any
part of the work required of Contractor under this Contract is delayed or
interrupted by Purchaser's failure to perform its contractual obligations within
the time specified in this Contract or within a reasonable time if no time is
specified, or an act by Purchaser that unreasonably interferes with Contractor's
performance of its obligations under this Contract, this Contract shall be
equitably adjusted in the price, performance requirements, Delivery schedule,
and any other terms of this Contract affected by such act or failure to act of
Purchaser.
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ARTICLE 19 - PATENT INDEMNITY
19.1 Indemnification
Purchaser agrees that Contractor has the right to defend and, at
Contractor's sole option to settle, and Contractor, at its own expense,
hereby agrees to defend or, at Contractor's sole option to settle, and
to indemnify and hold harmless Purchaser, and its affiliates, officers,
directors, employees, shareholders and agents, from and against any and
all claims, actions, suits or proceedings based on an allegation that
the manufacture of any Deliverable Item or the normal intended use,
lease, sale or other disposition of any Deliverable Item infringes U.S.
letters patent ("Intellectual Property Claim"), and shall pay any
royalties and other liabilities adjudicated to be owing to the claimant
(or, in Contractor's sole discretion, provided in settlement of the
matter) as well as costs incurred in defending (including court costs
and reasonable attorneys' fees) such Intellectual Property Claim;
provided that Purchaser promptly notifies Contractor in writing of any
such Intellectual Property Claim and gives Contractor the authority and
all such assistance and information as may be requested from time to
time by Contractor for the defense of such Intellectual Property Claim.
19.2 Infringing Equipment
If the manufacture of any Deliverable Item or the normal intended use,
lease, sale or other disposition of any Deliverable Item under this
Contract is enjoined as a result of an Intellectual Property Claim or
is otherwise prohibited, Contractor shall (i) resolve the matter so
that the injunction or prohibition no longer pertains, (ii) procure for
Purchaser the right to use the infringing item or (iii) modify the
infringing item so that it becomes non-infringing while remaining in
compliance with the Performance Specification (as may be waived
pursuant to Article 9.4). If Contractor is unable to accomplish (i),
(ii) or (iii) as stated above, Purchaser shall have right to terminate
this Contract with respect to
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such Deliverable Item, return such Deliverable Item to Contractor (in
space, with respect to an in-orbit Satellite), and receive a refund of
the price paid for such Deliverable Item (less amounts unpaid for such
item plus a reasonable allowance for depreciation).
19.3 Combinations and Modifications
Contractor shall have no liability under this Article 19 for any
Intellectual Property Claim arising solely from (i) use of any
Deliverable Item in combination with other items, unless Contractor
sold them as a combination intended to be so used or (ii) modifications
of Deliverable Items after Delivery, unless Contractor made such
modifications.
19.4 Sole Remedies
Except in the case of willful misconduct or Gross Negligence by
Contractor, the remedies set forth in this Article 19 are Purchaser's
sole and exclusive remedies for or related to any Intellectual Property
Claim, and Contractor's liability under this Article 19 for any
Intellectual Property Claim with respect to a Deliverable Item shall in
no event exceed the Firm Fixed Price paid by Purchaser hereunder for
such Deliverable Item. In all cases Contractor's liability shall be
subject to the limitation of liability set forth in Article 34.
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ARTICLE 20 - INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE
20.1 Contractor's Indemnification of Purchaser
Contractor shall defend, indemnify and hold harmless Purchaser, and its
affiliates, directors, officers, employees, shareholders and agents,
from and against all losses, damages, liabilities, suits and expenses
(including, but not limited to, reasonable attorneys' fees)
(collectively "Losses") attributable to third party claims for bodily
injury or property damage, but only if such Losses were caused by, or
resulted from, negligent acts or omissions, Gross Misconduct or willful
misconduct by Contractor or its employees or representatives. For the
avoidance of doubt, and except for Losses resulting from the Gross
Negligence or willful misconduct of Contractor, Contractor shall have
no indemnity obligation under this Article 20.1 for any Losses with
respect to the operation or use of a Satellite after Launch, even if
such Losses are attributable to an act or omission of Contractor or its
employees prior to Launch. In all cases Contractor's liability shall be
subject to the limitation of liability set forth in Article 34.
20.2 Purchaser's Indemnification of Contractor
Purchaser shall defend, indemnify and hold harmless Contractor, and its
affiliates, directors, officers, employees, shareholders and agents,
from and against all Losses attributable to third party claims for
bodily injury or property damage, but only if such Losses were caused
by, or resulted from, negligent acts or omissions, Gross Negligence or
willful misconduct by Purchaser or its employees or representatives.
20.3 Conditions to Indemnification
The right to any indemnity specified in Article 20.1 or 20.2 shall be
subject to the following conditions:
a. The Party seeking indemnification shall promptly advise the
other Party in writing of the filing of any suit or of any
written or oral
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claim for indemnification upon receipt thereof and shall
provide the other Party, at its request, with copies of all
documentation relevant to such suit or claim.
b. The Party seeking indemnification shall not make any admission
nor shall it reach a compromise or settlement without the
prior written approval of the other Party, which approval
shall not be unreasonably withheld or delayed.
c. The indemnifying Party shall assist and shall have the right
to assume, when not contrary to the governing rules of
procedure, the defense of any claim or suit in settlement
thereof and shall satisfy any judgments rendered by a court of
competent jurisdiction in such suits and shall make all
settlement payments. The Party seeking indemnification may
participate in any defense at its own expense, using counsel
reasonably acceptable to the indemnifying Party, provided
there is no conflict of interest and that such participation
would not adversely affect the conduct of the proceedings.
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ARTICLE 21 - TERMINATION FOR CONVENIENCE
21.1 Reimbursement of Contractor
Purchaser may terminate this Contract without cause, in whole or in
part, by giving Contractor written notice thirty (30) days prior to the
date of such termination. In the event of such termination, Contractor
will cease work as directed in the termination notice. Contractor shall
submit its claim for the work performed in connection with the
terminated Contract, and for its termination costs plus a reasonable
profit as provided in items (a) through (f) of this Article 21.1. If
Purchaser terminates this Contract in whole or in part pursuant to this
Article 21.1, Contractor shall be entitled to be paid:
a. The price set forth in Article 4 for Deliverable Items
completed prior to such termination for which payment had not
been made by Purchaser, whether or not Delivery has occurred
with respect to such Deliverable Item and whether or not this
Contract has been terminated pursuant to this Article 21.1
with respect to such Deliverable Item.
b. Actual out-of-pocket costs incurred by Contractor in
performance of work on Deliverable Items for which this
Contract has been terminated pursuant to this Article 21.1,
that have not been completed prior to such termination.
c. Actual out-of-pocket costs incurred by Contractor in
completing the termination process.
d. Actual out-of-pocket costs incurred by Contractor in settling
claims of subcontractors and other suppliers and vendors in
connection with such termination; provided that Contractor
shall use reasonable efforts to minimize such costs.
e. A XXX profit on items (b), (c) and (d) above. Less, any
amounts previously paid with respect to completed Deliverable
Items and terminated Deliverable Items.
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f. In no event will the aggregate of the amounts previously paid
by Purchaser under this Contract and the amounts to be paid by
Purchaser under this Article 21.1 exceed the Firm Fixed Price.
21.2 Partial Termination
If the termination by Purchaser is partial, the price for the
non-terminated portion of this Contract shall be increased by an amount
equal to the additional costs, if any, which must be borne by such
portion because of the partial termination, plus XXX profit on such
additional costs; however, in no event will the aggregate of the
amounts previously paid by Purchaser under this Contract and the
amounts to be paid by Purchaser for the non-terminated portion of this
Contract, as increased under this Article 21.2, exceed the Firm Fixed
Price.
21.3 Title Transfer
In the event of a termination pursuant to this Article 21, a
termination settlement meeting shall be held at a mutually agreed time
and place no later than sixty (60) days after submission of a claim by
Contractor pursuant to Article 21.1. At or prior to the date of such
termination settlement meeting, Contractor shall provide Purchaser with
such documentation of the costs set forth in Articles 21.1 and 21.2 as
Purchaser may reasonably request. Upon completion of the termination
settlement meeting, Contractor may submit an invoice to Purchaser for
payment in accordance with the terms of Article 5.2. Upon payment by
Purchaser to Contractor of the sums invoiced, subject to applicable
U.S. Government export laws, Contractor shall, at Contractor's or
subcontractor's plant, transfer title and risk of loss to Purchaser of
all Deliverable Items referred to in Article 21.1(a), and all other
partially completed or incomplete Deliverable Items for which
Contractor is paid under this Article 21. Purchaser may direct
Contractor to undertake to reallocate to other uses, and/or to
otherwise assist Purchaser in disposing/selling, items subject to
termination under this Article 21 for the purpose of receiving a price
refund or
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offset against Contractor's termination claim. Upon receipt of such
direction, Contractor shall, on a reasonable efforts basis, attempt to
reallocate, and/or to otherwise assist Purchaser in disposing/selling,
the items and provide a refund (in cases where the amounts generated
are greater than Contractor's termination claim) to Purchaser or an
offset (in cases where the amounts generated are less than or equal to
Contractor's termination claim) against Contractor's termination claim,
less any reasonable selling expenses.
ARTICLE 22 - XXX
XXX
ARTICLE 22A -- XXX
XXX
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ARTICLE 23 - DEFAULT
23.1 Failure to Perform by Contractor
Subject to Article 23.4 below, if Contractor (i) fails to deliver a
Satellite within the time specified therefor plus the maximum number of
days for late delivery liquidated damages specified in Article 22 or
any other Deliverable Item within the time specified therefor in this
Contract (or, in either case, such longer time as may be agreed to in
writing by Purchaser), or (ii) fails to perform any other material
provision of this Contract, and in each case does not cure such
failure, with respect to a Satellite on or before the last day
specified for late delivery liquidated damages in Article 22 (or such
longer time as may be agreed to in writing by Purchaser), or with
respect to any other Deliverable Item within XXX days (or such longer
period as may be agreed to in writing by Purchaser) after receipt from
Purchaser of written notice of such failure, Purchaser may terminate
this Contract in whole or in part by written notice to Contractor.
23.2 Termination Liability
In the event of a termination for default pursuant to Article 23.1,
Contractor shall refund all payments made by Purchaser for the
terminated work except with respect to items referred to in Article
23.3. Such refund shall be made no later than XXX days after
Contractor's receipt of Purchaser's written notice requesting such
refund. In addition, Contractor shall pay to Purchaser all excess costs
above the prices set forth herein reasonably incurred by Purchaser in
reprocuring the work and Deliverables described herein, according to
the delivery schedules set forth herein. Such refund and excess
reprocurement costs shall be Purchaser's sole remedy in case of a
termination pursuant to Article 23.1, except in the case of willful
misconduct or Gross Negligence by Contractor. In all cases Contractor's
liability shall be subject to the limitation of liability set forth in
Article 34.
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23.3 Partially Completed Items and Work In Process; Contractor's
Reimbursement for Terminated Work
In the event of termination pursuant to Article 23.1, upon Purchaser's
request, Contractor shall deliver to Purchaser all partially completed
items or services and work-in-process.
In the event of termination pursuant to Article 23.1, Contractor shall
not be required to refund any amounts, and Purchaser shall remain
liable for payment of all amounts, with respect to Deliverable Items
for which Acceptance has occurred pursuant to the terms of Article 10
or Article 11, or that are retained by Purchaser whether or not
completed, as follows: (i) at the price set forth in this Contract for
such items for which an itemized price is set forth herein and (ii) at
the cost incurred by Contractor for (a) such items for which no
itemized price is set forth herein and (b) partially completed items or
services and work-in-progress.
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23.4 Invalid Default Termination
If, after termination pursuant to Article 23.1, it is finally
determined by arbitration, legal proceeding or mutual agreement that
Contractor was not in default, or that the default was excusable, the
rights and obligations of the Parties shall be the same as if the
termination had occurred under Article 21; except that, Contractor
shall also be entitled to recover its additional direct costs that
would not have been incurred but for such invalid default termination.
23.5 Contractor Termination
Contractor may terminate this Contract upon Purchaser's failure to
comply with any material provision of this Contract by giving written
notice to Purchaser of its intention to so terminate. Such notice shall
set forth the provision or provisions with which Purchaser has failed
to comply and a reasonably detailed description of such failure. Such
termination shall become effective upon Purchaser's failure to correct
such nonperformance within XXX (or such longer period as may be agreed
to in writing by Contractor) after receipt of such notice from
Contractor.
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In the event of termination pursuant to this Article 23.6, Contractor
shall be paid as if the termination were for convenience pursuant to
Article 21. Further, and without limiting Contractor's other rights or
remedies, Contractor may immediately take over all or part of the
Deliverable Items and Contract work-in-process and use them in any
manner Contractor may elect. In such case, the fair market value of any
Deliverable Items or Contract work-in-progress retained by Contractor
shall be off-set against Purchaser's termination liability. If, after
termination pursuant to this Article 23.6, it is finally determined by
arbitration pursuant to Article 25 that Purchaser did not fail in the
performance of its obligations under this Contract, Contractor shall be
liable to Purchaser for direct damages resulting from such termination
of this Contract (in no event exceeding amounts payable to Purchaser
pursuant to Articles 23.2 and 23.3, and subject to the limitation of
liability set forth in Article 34).
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ARTICLE 24 - INTENTIONALLY DELETED
ARTICLE 25 - ARBITRATION
25.1 Arbitration
Any dispute (except as set forth in Article 25.2) arising between the
Parties with respect to the performance of obligations or
interpretation of this Contract that cannot be settled by negotiation
between the Parties within thirty (30) days of written notice from one
Party to the other stating such first Party's intent to resort to
arbitration ("Notice of Arbitration"), shall be submitted for
settlement by arbitration in accordance with the rules of conciliation
and arbitration of the American Arbitration Association. Any such
arbitration shall be conducted in Denver, Colorado by a panel of three
arbitrators who shall be selected within sixty (60) days of such Notice
of Arbitration: one selected by each Party and the third selected by
the arbitrators chosen by the Parties. Should no agreement be reached
on the third arbitrator within the time specified, the third arbitrator
shall be appointed by American Arbitration Association. In resolving
any dispute, the arbitrators shall apply the laws of the State of New
York (without regard to its conflict of law rules) and shall take into
account usages, customs and practices in the performance of contracts
for the purchase and sale of commercial communications satellites.
Proceedings and documents provided and generated in connection with any
arbitration hereunder shall be in the English language. 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. The arbitrators' decision shall be final and binding on the
Parties and enforceable in any court of competent jurisdiction. Any
monetary award made by the arbitrators in favor of Purchaser shall be
subject to the limitation of liability set forth in Article 34.
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25.2 Gross Negligence or Willful Misconduct
If a dispute arises as to whether or not a Party has committed or acted
with Gross Negligence or willful misconduct, such dispute shall be
resolved by a federal or state court in New York without a jury, and
the court shall resolve such dispute by applying the laws of the State
of New York without regard to its conflict of law rules. THE PARTIES
EXPRESSLY WAIVE THEIR RIGHT TO A JURY IN CONNECTION WITH SUCH DISPUTE.
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ARTICLE 26 - INTER-PARTY WAIVER OF LIABILITY FOR A LAUNCH
26.1 Launch Services Agreement Inter-Party Waiver of Liability
The Parties hereby agree to be bound by the no-fault, no-subrogation
inter-party waiver of liability and related indemnity provisions
provided in the Launch Services Agreement with respect to the Launch of
the Satellite and to cause their respective contractors and
subcontractors at any tier (including suppliers of any kind) that are
involved in the performance of this Contract and any other person
having an interest in the Satellite or any Transponder thereon
(including customers of Purchaser), as required by the Launch Services
Agreement and as specified by Buyer, to accede to such waiver. The
Parties shall execute and deliver any instrument that may be required
by the Launch Agency to evidence their agreement to be bound by such
waiver. Purchaser and Contractor also shall obtain, from their
insurers, and shall cause their respective contractors and
subcontractors at any tier (including suppliers of any kind) that are
involved in the performance of this Contract and any other person
having an interest in any Satellite or any Transponder thereon
(including customers of Purchaser), as required by the Launches
Services Agreement and as specified by Buyer, to obtain from their
insurers, an express waiver of such insurers' rights of subrogation,
subject to terms and conditions as are then customarily available
regarding such waivers, with respect to any and all claims that have
been waived pursuant to this Article 26.
26.2 Indemnity Related to the Inter-Party Waiver of Liability
Each Party shall indemnify against and hold the other Party harmless
from any claim against the other Party, its contractors and
subcontractors at any tier (including suppliers of any kind) that are
involved in the performance of this Contract, made by the Launch Agency
or any of its contractors and subcontractors (including
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suppliers of any kind) that are involved in the performance of the
Launch Services Agreement, resulting from the failure of the first
Party to waive any liability against, or to cause any other person such
Party is obligated to cause to waive any liability against, the Launch
Agency or its contractors and subcontractors at any tier (including
suppliers of any kind).
26.3 Survival of Obligations
The indemnification and hold harmless obligations provided in this
Article 26 shall survive and remain in full force and effect,
notwithstanding the expiration or termination of this Contract.
26.4 XXX
ARTICLE 27 - RESERVED
ARTICLE 28 - RESERVED
ARTICLE 29 XXX
XXX
ARTICLE 30 - RESERVED
ARTICLE 31 - RESERVED
ARTICLE 32 - RESERVED
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ARTICLE 33 - GROUND STORAGE
33.1 Notification
Purchaser may direct Contractor to store the Satellite after completion
of SPSR.
33.2 Storage Location
Ground Storage shall be performed at a Contractor controlled facility
and shall be conducted in accordance with the satellite storage plan
section(s) of the Statement of Work.
33.3 Storage Prices
There shall be no charge for storage and reverification work if the
Contractor's failure to perform is the reason the Satellite is stored,
or if the Satellite is stored for less than six months.
The firm fixed price for Ground Storage of the Satellite in all other
circumstances shall be $XXX per month storage cost while the Satellite
is in Ground Storage. In addition, Purchaser shall also pay directly or
reimburse Contractor for all costs related to re-verification of system
flight assurance and re-verification testing (plus XXX) and for all
additional costs which Contractor would not have incurred had Purchaser
not elected Ground Storage of the Satellite (including taxes, tariffs,
duties, transportation, insurance, and Launch preparation
service-related expenses).
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33.4 Payments
Payments shall be made on the thirtieth day of each month for the prior
month's storage, provided an invoice is received at least thirty days
prior to the payment date.
33.5 Title and Risk of Loss
Title and risk of loss to a Satellite delivered for Ground Storage
shall remain with Contractor at the storage site. Contractor shall
assume full responsibility for any loss or damage to the Satellite
during Ground Storage.
33.6 Notification of Intention to Launch a Previously Stored Satellite
Purchaser shall notify Contractor in writing that a Satellite in Ground
Storage should be removed from Ground Storage and delivered to the
Launch Site. This notification must be received by Contractor not less
than three (3) months prior to the scheduled date for Delivery to the
Launch Site of the Satellite. Failure to notify Contractor in a timely
manner will result in an adjustment to the Delivery schedule for such
Satellite.
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ARTICLE 34 - LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER, OR
ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS AT
ANY TIER (INCLUDING SUPPLIERS OF ANY KIND), AGENTS OR CUSTOMERS, TO ITS
PERMITTED ASSIGNEES OR SUCCESSOR OWNERS OF ANY SATELLITE OR OTHER
DELIVERABLE ITEM OR TO ANY OTHER PERSON CLAIMING BY OR THROUGH SUCH
PARTY FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS,
OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE
DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES OR
COSTS OF RECOVERING A SATELLITE (EXCEPT WITH RESPECT TO A THIRD PARTY'S
DAMAGES FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION UNDER
ARTICLE 19 OR 20), ARISING FROM OR RELATING TO THE PERFORMANCE OR
NONPERFORMANCE OF THIS CONTRACT OR ANY ACTS OR OMISSIONS ASSOCIATED
THEREWITH OR RELATED TO THE USE OF ANY ITEMS DELIVERED OR SERVICES
FURNISHED HEREUNDER, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF
CONTRACT, TORT, STATUTE OR OTHER LEGAL OR EQUITABLE THEORY, EXCEPT THAT
IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY CONTRACTOR OR
PURCHASER SUCH PARTY MAY BE LIABLE AND RESPONSIBLE FOR AMOUNTS
REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS AND THE OTHER
ABOVE-DESCRIBED DAMAGES IN AN AMOUNT NOT TO EXCEED $XXX.
IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY UNDER OR IN CONNECTION
WITH THIS CONTRACT EXCEED THE FIRM FIXED PRICE (PROVIDED REFUNDS UNDER
ARTICLE 23.2 WILL NOT COUNT AGAINST THIS FIGURE), EXCEPT FOR LIABILITY
ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY A PARTY, IN
WHICH CASE THE TOTAL LIABILITY OF A PARTY MAY NOT EXCEED THE FIRM FIXED
PRICE PLUS $XXX.
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ARTICLE 35 - DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION
35.1 Definition of Proprietary Information
For the purpose of this Contract, "Proprietary Information" means all
information (other than Deliverable Data, which is subject to the
provisions of Article 36), in whatever form transmitted, that is
disclosed by such Party (hereinafter referred to as the "disclosing
party") to the other Party hereto (hereinafter referred to as the
"receiving party") relating to the performance by the disclosing party
of this Contract and: (i) is identified as proprietary by means of a
written legend thereon, or (ii) if disclosed orally, is identified as
proprietary at the time of initial disclosure. Proprietary Information
shall not include any information disclosed by a Party that (i) is
already known to the receiving party at the time of its disclosure, as
evidenced by written records of the receiving party, without an
obligation of confidentiality at the time of disclosure; (ii) is or
becomes publicly known through no wrongful act of the receiving party;
(iii) is independently developed by the receiving party as evidenced by
written records of the receiving party; (iv) such Party is legally
compelled to disclose; or (v) is obtained from a third party without
restriction and without breach of this Contract.
35.2 Terms for Handling and Use of Proprietary Information
For a period of five (5) years after receipt of any Proprietary
Information (or until such time as such Proprietary Information becomes
publicly known as provided in Article 35.1), the receiving party shall
not disclose Proprietary Information that it obtains from the
disclosing party to any person or entity except its employees and
agents who have a need to know in order to perform under this Contract
and who have been informed of and have agreed to abide by the receiving
party's obligations under this Article 35. The receiving party shall
use not less than the same degree of care to avoid
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disclosure of such Proprietary Information as it uses for its own
Proprietary Information of like importance; but in no event less than a
reasonable degree of care. Proprietary Information shall be used only
for the purpose of performing the obligations under this Contract, or
as the disclosing party otherwise authorizes in writing.
IN NO EVENT SHALL EITHER PARTY DISCLOSE OR TRANSFER TECHNICAL
INFORMATION OR PROVIDE TECHNICAL SERVICES TO INSURANCE BROKERS,
UNDERWRITERS OR OTHER THIRD PERSONS OR ENTITIES WITHOUT THE OTHER
PARTY'S PRIOR WRITTEN APPROVAL (WHICH SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED) AND, WHERE REQUIRED, PRIOR APPROVAL OF THE U.S.
DEPARTMENT OF STATE.
35.3 Legally Required Disclosures
Notwithstanding the foregoing, in the event that the receiving party
becomes legally compelled to disclose Proprietary 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 Proprietary 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 Proprietary Information being disclosed.
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35.4 Disclosure of Contract Terms
Notwithstanding anything to the contrary in this Article 35, and
subject to applicable export restrictions, the terms and conditions of
this Contract may not be disclosed by either Party to any person except
with the prior written consent of the other Party, provided, in each
case, that the recipient of such information agrees to treat such
information as confidential and executes and delivers a confidentiality
agreement reasonably acceptable to both Parties or is otherwise subject
to confidentiality obligations reasonably satisfactory to both Parties;
provided, further, that either Party shall have the right to disclose
such information as is required under applicable law or the binding
order of a court or government agency.
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ARTICLE 36 - RIGHTS IN DATA
36.1 Rights
Contractor shall retain title to all Deliverable Data utilized or
developed by Contractor during the performance of this Contract.
Subject to U.S. export regulations and applicable export restrictions,
Purchaser's officers, directors, employees, consultants and
representatives shall have the non-exclusive right to obtain and use
the Deliverable Data for any and all purposes related to the testing,
operation, use and maintenance of the Satellite. Purchaser's officers,
directors, employees, consultants and representatives shall not
disclose Deliverable Data to other companies, organizations or persons
without the express prior written consent of Contractor, which consent
shall not be unreasonably withheld or delayed. Purchaser shall have no
rights in Deliverable Data other than as expressly stated in this
Contract, and title to Deliverable Data shall not pass to Purchaser or
any other entity pursuant to the terms hereof.
36.2 No Additional Obligation
Nothing contained in this Article shall require Contractor to provide
any data other than as set forth in the Statement of Work.
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ARTICLE 37 - PUBLIC RELEASE OF INFORMATION
Either Party intending to disclose publicly whether through the issuance of news
releases, articles, brochures, advertisements, prepared speeches or other
information releases concerning this Contract or the transactions contemplated
herein shall obtain the prior written approval of the other Party with respect
to the content and timing of such issuance. A Party's approval under this
Article 37 shall not be unreasonably delayed or denied. Notwithstanding the
above, either Party may release information described herein as required by
securities laws or other applicable laws.
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ARTICLE 38 - NOTICES
38.1 Written Notification
Each notice or correspondence required or permitted to be given or made
hereunder shall be in writing (except where oral notice is specifically
authorized) to the respective addresses, facsimile and telephone
numbers and to the attention of the individuals set forth below, and
any such notice shall be deemed given on the earlier to occur of (i)
actual receipt, irrespective of whether sent by post, facsimile
transmission (followed by mailing of the original copy), overnight
courier or other method, and (ii) seven (7) days after mailing by
registered or certified mail, return receipt requested, postage
prepaid.
In the case of Purchaser:
Echostar Orbital Corporation
0000 Xxxxx Xxxxx Xx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a separately delivered copy to:
Xxxxxxx Xxxxx and Xxxxx Xxxxxx
(at the same address)
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In the case of Contractor:
Space Systems/Loral, Inc.
0000 Xxxxxx Xxx, Xxxxxxxx X-00
Xxxx Xxxx, XX 00000-0000
Attn.: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
38.2 Change of Address
Either Party may from time to time change its notice address or the
persons to be notified by giving the other Party written notice (as
provided above) of such new information and the date upon which such
change shall become effective.
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ARTICLE 39 - RISK MANAGEMENT
Purchaser shall be responsible to obtain risk insurance, if any, for the Launch
of the Satellite.
If Purchaser applies for insurance regarding risks relating to the Launch of the
Satellite, Contractor shall furnish Purchaser with such information regarding
the Satellite as is reasonably requested by the insurers and will cooperate in
any insurance reviews.
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ARTICLE 40 - ORDER OF PRECEDENCE
In the event of conflict among the terms of the Preamble and Articles 1 to 42 of
this Contract and the Exhibits, the following order of decreasing precedence
shall apply:
o This Contract (Preamble and Articles 1 through 45 and Attachments A
and B)
o Exhibit A Statement of Work
o Exhibit B Performance Specification
o Exhibit C Product Assurance Program Plan
o Exhibit D Test Plan
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ARTICLE 41 - GENERAL
41.1 Binding Effect; Assignment
This Contract shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns. This
Contract may not be assigned, either in whole or in part, by either
Party without the express written approval of the other Party. Such
approval shall not be unreasonably withheld or delayed. Contractor may
require, as a condition of approving an assignment by Purchaser, that
the proposed assignee establish irrevocable letters of credit,
guarantees or other comparable assurances satisfactory to Contractor
prior to such assignment becoming effective and that Purchaser remain
primarily or secondarily liable hereunder. Either Party, upon prior
written notice to the other Party, may grant security interests in its
rights hereunder to lenders that provide financing for the performance
by such Party of its obligations under this Contract or for the subject
matter hereof. In the event that either Party is sold to or merged into
another entity, its responsibilities under this Contract shall not be
altered and the successor organization shall be liable for performance
of such Party's obligations under this Contract.
41.2 Severability
If any provision of this Contract is declared or found to be illegal,
unenforceable or void, the Parties shall negotiate in good faith to
agree upon a substitute provision that is legal and enforceable and is
as nearly as possible consistent with the intentions underlying the
original provision. If the remainder of this Contract is not materially
affected by such declaration or finding and is capable of substantial
performance, then the remainder shall be enforced to the extent
permitted by law.
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41.3 Captions
The captions contained herein are for purposes of convenience only and
shall not affect the construction of this Contract.
41.4 Relationships of the Parties
It is expressly understood that Contractor and Purchaser intend by this
Contract to establish the relationship of independent contractors only,
and do not intend to undertake the relationship of principal and agent
or to create a joint venture or partnership or any other relationship,
other than that of independent contractors, between them or their
respective successors in interests. Neither Contractor nor Purchaser
shall have any authority to create or assume, in the name or on behalf
of the other Party, any obligation, expressed or implied, or to act or
purport to act as the agent or the legally empowered representative of
the other Party, for any purpose whatsoever.
41.5 Entire Agreement
This Contract, including all Exhibits and the Attachments hereto,
represents the entire understanding and agreement between the Parties
hereto with respect to the subject matter hereof, and supersedes all
prior negotiations and agreements with respect to the subject matter
hereof. This Contract may not be modified or amended, and the Parties'
rights and obligations may not be waived, except by the written
agreement of both Parties.
41.6 Standard of Conduct
Both Parties agree that all their actions in carrying out the
provisions of this Contract shall be in compliance with applicable laws
and regulations and neither Party will pay or accept bribes, kickbacks
or other illegal payments, or engage in unlawful conduct.
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41.7 Construction
This Contract, the Exhibits and the Attachment hereto have been drafted
jointly by the Parties and in the event of any ambiguities in the
language hereof, there shall be no inference drawn in favor of or
against either Party.
41.8 Counterparts
This Contract may be signed in any number of counterparts with the same
effect as if the signature(s) on each counterpart were upon the same
instrument.
41.9 Applicable Law
This Contract shall be interpreted, construed and governed, and the
rights of the Parties shall be determined, in all respects, according
to the laws of the State of New York without regard to its conflict of
law rules.
41.10 Survival
Termination or expiration of this Contract for any reason shall not
release either Party from any liabilities or obligations set forth in
this Contract that (i) the Parties have expressly agreed shall survive
any such termination or expiration or (ii) remain to be performed or by
their nature would be intended to be applicable following any such
termination or expiration.
41.11 U.N. Convention on the International Sales of Goods
The U.N. Convention on the International Sales of Goods shall not apply
or otherwise have any legal effect with respect to this Contract.
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ARTICLE 42 - ATTACHMENTS
The following Attachments are incorporated in this Contract:
Attachment A Payment Plan
Attachment B Pages 5 through 11 of the EchoStar 5 Insurance Policy
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ARTICLE 43 - TERMINATION RIGHT
Notwithstanding anything to the contrary herein, if by the TBD Deadline the
Parties are unable to reach final agreement upon (1) the pricing and schedule
for the options described in Article 29.5, or (2) the TBD terms of this
Contract, the Statement of Work, Satellite Performance Specification, Product
Assurance Program Plan, Satellite Program Test Plan and Payment Plan, then
Purchaser may immediately terminate this Contract by providing written notice to
Contractor. If such termination occurs, then Purchaser shall pay Contractor $XXX
within thirty (30) days of receipt of an invoice. All other liabilities and
obligations of the Parties shall be released, waived and terminated, except for
those set forth in Articles 20, 35 and 37.
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ARTICLE 44 - COOPERATION REGARDING SPOT BEAMS
Until the TBD Deadline, Contractor shall use reasonable commercial efforts to
cooperate with Lockheed Xxxxxx Corporation ("LMC") regarding the coordination
and development of the requirements and footprints for the spot beams for the
Satellite and the EchoStar 7 satellite being manufactured by LMC. In addition,
upon Purchaser's request, Contractor shall use reasonable commercial efforts to
cooperate with LMC as necessary to change the initial requirements and/or
footprints of the spot beams for the Satellite and the EchoStar 7 satellite.
Finally, Contractor shall use reasonable commercial efforts to cooperate with
LMC as necessary to ensure that the spot beams of the Satellite and the EchoStar
7 satellite, as deployed, will operate in accordance with the final approved
requirements and footprints. In performing the above obligations, Contractor
shall not be required to disclose any of its proprietary information to LMC.
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ARTICLE 45 - XXX
XXX
ARTICLE 46 - KEY PERSONNEL
The Contractor will assign properly qualified and experienced personnel to the
program contemplated under the Contract. Personnel assigned to the following
positions shall be considered "Key Personnel":
a) the Contractor's Program Manager
b) the Contractor's Contracts Manager
c) the Contractor's Product Assurance Manager
d) the Contractor's Systems Engineering Manager
e) the Contractor's Vehicle Manager
The Purchaser shall have the right to approve the Contractor's Program Manager
which approval shall not be unreasonably withheld or delayed. Key Personnel
shall not be assigned to other duties without the Contractor giving prior
written notice to and consulting with the Purchaser. The Contractor shall
provide a chart to the Purchaser of the program Key Personnel and shall keep
such chart current.
Additionally, for so long as Xxxxx Xxxxx is associated with Contractor as an
employee or consultant, Purchaser shall have unrestricted access to Xx. Xxxxx
for purposes of designing the payload and its specifications. Xx. Xxxxx shall
have a key decision-making role on payload-related issues, and shall be a
primary interface with the Purchaser on all payload-related technical and
performance issues.
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IN WITNESS THEREOF, the Parties have executed this Contract by their duly
authorized officers as of the date set forth in the Preamble.
ECHOSTAR ORBITAL
SPACE SYSTEMS/LORAL, INC. CORPORATION
By: By:
------------------------- -------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
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