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Exhibit 10.1
AGREEMENT
This agreement ("Agreement") is made this __ day of July, 1996, between
SPACEHAB, Incorporated ("SHI"), a Washington state corporation, with principal
offices located in Vienna, Virginia and MITSUBISHI Corporation ("MITSUBISHI"),
a Japanese corporation, with principal offices located in Tokyo, Japan, on
behalf of the National Space Development Agency of Japan ("NASDA", collectively
"Buyer").
WHEREAS MITSUBISHI desires to lease from SHI the Commercial
Vapor Diffusion Apparatus protein crystal growth hardware and purchase
associated services for use by NASDA aboard the STS-84 SHI Double Module
Mission to Mir ("STS-84") currently scheduled for, and no sooner than, May
1997; and
WHEREAS SHI desires to lease to MITSUBISHI such Commercial
Vapor Diffusion Apparatus protein crystal growth hardware and sell such
associated services on STS-84;
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties agree as follows:
1. STATEMENT OF WORK
SHI will provide, at the times and locations set forth therein
and pursuant to the terms and conditions of this Agreement,
the hardware, supplies and services described in the Statement
of Work ("SOW") attached hereto as Exhibit A and incorporated
herein by this reference.
2. FIXED PRICE
MITSUBISHI shall pay SHI a fixed price of $3,280,000 for all
of the "Standard Services" provided by SHI, and $270,000 for
the "Optional Services" as set forth in the SOW. Payment to
SHI shall be made as follows:
60% ($2.13 million) upon execution of this Agreement
25% ($0.89 million) on or before November 1, 1996
15% ($0.53 million) on or before 30 days after launch of STS-84
3. PAYMENT TERMS AND CONDITIONS
a. The initial payment set forth above shall be made by
Mitsubishi within 30 days of its execution of this Agreement,
but in no event later than October 31, 1996. SHI will xxxx
MITSUBISHI prior to the remaining above-referenced payment due
dates. In the event of a material change in the STS-84 launch
date only, SHI will prepare a revised Payment Schedule
corresponding to the changed launch date.
b. SHI shall send a Final Accounting/Billing to MITSUBISHI as
promptly as possible after completion of the last service
provided for by SHI under this Agreement. The Final
Accounting/Billing will address any additional payment
required from MITSUBISHI (including but not limited to
payments for Optional Services not previously paid) or refund
due MITSUBISHI as a result of a price reduction for Optional
Services pursuant to Section 4 below. If, as a result of
Final Accounting/Billing, an additional MITSUBISHI payment or
refund is required, such payment or refund shall be due 30
days after the billing date of the Final Billing.
C. In the event STS-84 is delayed, suspended, or postponed, there
may be additional charges to MITSUBISHI as specified in the
following circumstances:
Delay caused by NASA
- MITSUBISHI pays only additional service costs, if
any, required/provided by NASA and/or SHI. SHI
agrees to notify MITSUBISHI of any such costs
prior to incurring the costs, if possible, and to
negotiate terms and conditions thereof with
MITSUBISHI.
Delay caused by SHI
- MITSUBISHI pays only additional service costs, if
any, required/provided by NASA. SHI agrees to
notify MITSUBISHI of any such costs prior to
incurring the costs, if possible and payment terms
and conditions of additional service costs will be
negotiated by the parties.
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Delay caused by MITSUBISHI/NASDA
- MITSUBISHI pays any additional NASA costs charged
to SHI which may be required or caused by any
delay, suspension or postponement of the launch in
excess of the 72 hours allowable delay for which
NASA does not charge.
- MITSUBISHI pays for any additional costs incurred
by SHI for services provided by NASA and/or SHI.
- In the event NASDA delivers the payload described
in the SOW ("CVDA") so late that SHI, in its sole
judgment, is unable to process the CVDA in time to
meet the launch schedule, SHI will terminate this
Agreement and will retain as liquidated damages
all payments made by MITSUBISHI up through the
date of termination.
4. OPTIONAL SERVICES
The "Optional Services" set forth in the SOW may be requested
by MITSUBISHI. Any optional services requested by MITSUBISHI
other than those Optional Services listed in the SOW are not
included in the pricing set forth in Section 2 above, and
shall be charged to MITSUBISHI at the cost to SHI to perform
and/or purchase such optional services. To the extent any of
the Optional Services are shared with other SHI customer
payloads, the price for such Optional Services to MITSUBISHI
shall be reduced to reflect a prorata distribution of the
Optional Services costs among all SHI customer users thereof
5. APPLICABILITY OF NASA/SHI SPACE SHUTTLE AGREEMENTS
SHI and MITSUBISHI acknowledge that performance of the
services described in this Agreement and the SOW depends upon
the agreement[s] governing NASA's lease of the SHI module for
STS-84 or any other missions covered herein ("NASA
Contracts"). Any changes to these NASA/SHI agreement[s] that
are imposed by NASA and which prevent SHI from providing the
services described herein shall not constitute a breach of
this Agreement by either SHI or MITSUBISHI. In the event of
such changes by NASA, SHI and MITSUBISHI agree to negotiate an
equitable adjustment to this Agreement that satisfies both
parties as well as NASA's new requirements. If there are any
conflicts between this Agreement and the requirements of the
NASA Contracts applicable to this Agreement, the NASA
Contracts terms and conditions shall take precedence.
6. EXCHANGE OF DOCUMENTATION AND INFORMATION
a. SHI and MITSUBISHI shall exchange all documents and
information required for each party to fulfill its
responsibilities under this Agreement.
b. All technical data furnished to SHI under this Agreement shall
be provided with no restricted rights for use, duplication,
and disclosure in any manner and for any purpose whatsoever in
performance of this Agreement by SHI and its contractors and
subcontractors, and without a restrictive legend, except as
provided below. It is the intent of the parties that the
designation of proprietary technical data or trade secrets
shall be kept to a minimum in order to facilitate
implementation of this Agreement.
c. In the event any of the technical data required to be
furnished to SHI under this Agreement is considered by
MITSUBISHI to be proprietary or a trade secret (such as
detailed design, manufacturing and processing information) and
MITSUBISHI desires to maintain proprietary or trade secret
rights for such data, MITSUBISHI shall inform SHI that the
data is considered proprietary or a trade secret and any data
so provided shall be conspicuously marked by MITSUBISHI
"Proprietary" or "Trade Secret" prior to submittal to SHI.
SHI agrees that the data will not, without permission of
MITSUBISHI, be duplicated, used or disclosed by SHI or its
contractors and subcontractors for any purpose other than as
necessary to carry out SHI's obligations pursuant to the
agreements referenced in Section 5 above or this Agreement.
If required by such contractors and/or subcontractors, the
data will only be furnished after the contractors and/or
subcontractors have agreed with SHI in writing to protect the
data from unauthorized use, duplication and disclosure.
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d. SHI considers all data (including data reduction and
analysis) obtained or derived from the CVDA as a result of the
activities for which MITSUBISHI has paid SHI under this
Agreement to be property of MITSUBISHI, and, in order to
protect trade secrets and other property rights of MITSUBISHI
in such data, SHI will maintain such data in confidence. SHI
will not acquire, as a result of launch and associated
services under this Agreement, any rights to MITSUBISHI's
copyrights, trademarks, trade secrets, inventions, or patents
which may be used in or result from the CVDA or any rights to
MITSUBISHI's proprietary or trade secret data, except the
right to use duplicate, and disclose such data as set forth
above.
7. PERMITS AND LICENSES
SHI shall obtain any permit or license that may be required to
provide the services to be furnished under this Agreement.
MITSUBISHI will be responsible for obtaining any permit or
license that may be required to perform an activity unique to
the CVDA that is not included in the foregoing, such as tests
involving use of radioactive materials or particular
requirements of MITSUBISHI's own government, or governmental
authorities outside the United States.
8. ALLOCATION OF CERTAIN RISKS AND LIMITATION OF LIABILITY
a. Inter-Party Waiver of Liability.
In carrying out this Agreement, SHI, NASDA/MITSUBISHI, and
NASA, will respectively utilize their property and employees
in the SPPF, NASA facilities, and during payload processing
activities and STS Operations in close proximity to one
another and to others. Furthermore, the parties recognize
that all participants are engaged in the common goal of
meaningful exploration, exploitation and utilization of outer
space. In furtherance of this goal, the parties hereto agree
to a no-fault, no-subrogation, inter-party waiver of liability
pursuant to which each party agrees not to bring claims in
arbitration or otherwise against or xxx the other party or
other customers of SHI, and agrees to absorb the financial and
any other consequences arising out of damage to its own
property and employees as a result of participation in the
payload processing activities and STS Operations, irrespective
of whether such damage is caused by SHI, MITSUBISHI, other SHI
customers, NASA, or other NASA customers participating in
payload processing activities and STS Operations and
regardless of whether such damage arises through negligence or
otherwise.
b. Extension of Inter-Party Waiver.
The parties agree that this common goal will also be advanced
through extension of the inter-party waiver of liability to
other participants in the payload processing activities and
STS Operations. Accordingly, the parties agree to extend the
waiver as set forth in Section 8a above to the other party's
and NASA's contractors and subcontractors at every tier, as
third party beneficiaries, whether or not such contractors or
subcontractors causing damage bring property or employees to
SHI's SPPF or retain title to other interest in property
provided by them to be used, or otherwise involved, in the
payload processing and Launch Activity. Specifically, the
parties intend to protect these contractors and subcontractors
from claims, including "products liability" claims, which
might otherwise be pursued by the parties, or the contractors
or subcontractors of the parties, or other customers of SHI or
the contractors or subcontractors of such other customers.
Moreover, it is the intent of the parties that each will take
all necessary and reasonable steps to foreclose claims for
damage by any participant in a payload processing and Launch
Activity, under the same conditions and to the same extent as
set forth in Section 8a above, except for claims between
MITSUBISHI and its contractors or subcontractors and claims
between SHI and its contractors and subcontractors.
x. Xxxxx Construction of Inter-Party Waiver.
The parties intend that the inter-party waiver of liability
set forth above be broadly construed to achieve the intended
objectives.
d. Insurance Coverage In Lieu of Cross-Waiver
In the event that MITSUBISHI is unable to comply with the
above waiver provisions due to prohibitions by the laws of
Japan, SHI agrees to purchase indemnification insurance
covering participants who otherwise would have been covered by
the cross waiver provisions above in the event MITSUBISHI were
materially damaged by one or more of such participants during
the payload processing activities or STS Operations.
e. Definitions of "payload processing activity" and "STS Operations" In
Section 8
"Payload processing activity" means all activity conducted at
the SPPF or a NASA facility associated with the preparation of
the payload(s) (including but not limited to the CVDA) for
launch and SHI and/or NASA storage of all or a portion of the
payload(s), and the handling and transportation of all or a
portion of the payload(s) outside the confines of SHI's
facility by SHI, NASA, or their contractors or subcontractors:
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"STS Operations" means:
A. All Space Shuttle System Activity
B. All payload operations
C. Use of all tangible personal property
(including ground support, test,
training and simulation equipment
related to A & B above).
D. Research, design, development, test,
manufacture, assembly, integration,
transportation, or use of materials
related to the above items, A, B & C.
E. Performance of any activities related
to A through D.
f. The protection of cross waiver of liability for STS Operations herein
agreed to shall cover a period of time during which STS Operations are
being performed as follows:
Beginning with the signature of an Agreement
with NASA for Space Transportation System services and
(i) when any employee, payload or property arrives at
a United States Government Installation, or (ii)
during transportation of such to the installation by a
United States Government Conveyance, or (ii) at
ingress of such into an Orbiter, for the purpose of
fulfilling such Agreement or Arrangement, or (iv) the
commencement of extravehicular activities by the
Shuttle Crew for the purpose of retrieval of the
payload, whichever occurs first and Ending with regard
to any employee, payload or property, when such
employee, payload or property departs (i) a U.S.
Government Installation, or (ii) the Orbiter if it
lands at other than such Installation, or (iii) a U.S.
Government conveyance which transports the employee
and/or payload and related property from such
Installation or Orbiter.
g. Risk of Patent Infringement
(i) SHI agrees to indemnify MITSUBISHI, its officers,
employees and agents against any United States Patent
infringement costs (including, but not limited to, any
judgment against MITSUBISHI by a court of competent
jurisdiction, reasonable administrative and litigation costs,
and settlement payments made as a result of an administrative
claim) incurred by MITSUBISHI which are attributable to
products, processes or articles of manufacture used in the
facilities and Services to be furnished to MITSUBISHI by SHI
hereunder.
(ii) MITSUBISHI agrees to indemnify SHI AND NASA, their
officers, employees and agents against any United States
Patent infringement costs (including, but not limited to,
judgment against SHI reasonable administrative and litigation
costs, and settlement payments made as a result of an
administration claim) incurred by SHI and/or NASA which are
attributable to products, processes or articles of manufacture
used in the CVDA and any supporting equipment and facilities
brought to the SHI SPPF by MITSUBISHI or MITSUBISHI's
contractors or subcontractors and any activity performed at
SHI or NASA facilities by MITSUBISHI or MITSUBISHI's
contractors or subcontractors and any activity performed at
SHI or NASA facilities by MITSUBISHI or MITSUBISHI's
contractors or subcontractors.
h. Limitation of SHI and MITSUBISHI Liability
Notwithstanding any other provisions herein, to the extent
that a risk of damage is not dealt with expressly in this
Agreement, SHI's and the MITSUBISHI's liability under this
Agreement, whether or not arising as a result of an alleged
breach of this Agreement, shall be limited to direct damages
only and shall not include any loss of revenue, profits or
other indirect or consequential damages.
9. ASSISTANCE WITH THIRD PARTY CLAIMS
In the event a third party claim is asserted against SHI or
MITSUBISHI as a result of patent infringement, use of
proprietary data, or damage, including claims of their
respective contractors or subcontractors, arising from or in
connection with the Services provided by SHI under this
Agreement, SHI and MITSUBISHI each agree to give prompt notice
to the other of any such claim and agree to provide each other
with any
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assistance practicable in the defense against such claim. If
a claim asserted against one party is a claim under this
Agreement, the party who has agreed to indemnify shall have
the right to intervene and defend, the right to control
litigation of, and the right to determine the appropriateness
of any settlement related to such claim.
10. WARRANTIES
SHI MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
11. PUBLICITY RELATING TO AGREEMENT
In cases where one Party intends to use results obtained from
this Agreement or advertise his role in this Agreement, it
shall first request the other Party for its prior written
approval, which shall not be unreasonably withheld.
12. APPLICABLE LAW
The Agreement shall be governed by the law of the State of
Virginia.
13. ARBITRATION/DISPUTES
Disputes arising out of the interpretation or execution of
this Agreement which cannot be resolved by negotiation shall,
at the request of either Party, (after giving 30 days notice
to the other Party) be submitted to arbitration. The
arbitration tribunal shall sit in Washington, D.C. Disputes
shall be finally settled in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce by one or more arbitrators designated in conformity
with those Rules. The decision to submit a dispute shall not
excuse either party from the timely performance of its
obligations hereunder which are not the subject matter of the
dispute. Further, if the lack of resolution of the matter in
dispute will adversely impact the timely completion of
preparation for launch activities, MITSUBISHI and SHI will
perform the matter in dispute in the manner determined by SHI,
within the framework of this Agreement and without prejudice
to the final resolution of the matter in dispute.
14. TERMINATION OF SERVICES
Both parties have the right to terminate this Agreement
pursuant to the following conditions only:
a. SHI may terminate this Agreement:
(i) as a result of breach by MITSUBISHI if MITSUBISHI has
not cured the breach within the time specified by SHI
in its cure notice to MITSUBISHI (or immediately upon
a non-curable breach), in which case SHI shall retain
all payments made to the date of the termination, and
MITSUBISHI is further liable for all costs incurred
by SHI resulting from MITSUBISHI's breach of the
Agreement, or
(ii) as a result of any actions or inactions by NASA which
materially impair SHI's ability to perform this
Agreement, in which case MITSUBISHI shall be entitled
to any transportation costs for which SHI is
reimbursed by NASA and which were previously paid by
MITSUBISHI.
b. MITSUBISHI may terminate this Agreement
(i) without cause at any time before installation of the
CVDA into the SHI module upon sufficient written
notification to SHI of such intent, in which case
MITSUBISHI shall be liable for and SHI shall retain
all Transportation and Lease progress payments, plus
the Integration and Optional Services costs incurred
up to the time of termination, as well as all
termination charges, or
(ii) in the event of material breach by SHI which SHI
fails to cure in a reasonable time after written
notice of such material breach is received from
MITSUBISHI, in which case MITSUBISHI will be relieved
from making any further payments to SHI subsequent to
the material breach hereof. In the event NASDA
cannot complete its science objectives as set forth
herein due solely to a material breach hereof by SHI,
SHI shall forfeit the final 15% payment set forth
above, and thus any possibility of profit under this
Agreement, since previous payments go directly to
unrecoverable costs incurred by SHI in performance
hereof.
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15. ASSIGNMENTS
No party shall assign to another person or entity any part of
its rights under this Agreement, including but not limited to
rights for services related to scheduled launches, unless
otherwise expressly agreed to by the other party in writing,
or as may be required pursuant to law.
16. NOTICES
All notices, requests, demands, and other communication
hereunder shall be in writing and shall be either (1)
personally delivered, (2) sent by U. S. mail or reputable
overnight delivery service, or (3) transmitted by facsimile
machine as follows:
To SHI at: Xxxxx Xxxxxxxx
Contracts Administrator
SPACEHAB, Inc.
0000 Xxxxxx Xxxx Xx.
Xxxxxx, Xxxxxxxx 00000
To MITSUBISHI at: Xx. Xxxxxxx Xxxx
Assistant General Manager
Aerospace Department
Mitsubishi Corporation
0-0 Xxxxxxxxxx 0-Xxxxx
Xxxxxxx-xx, Xxxxx 000
Xxxxx
The effective date of each notice, demand, request or other
communication shall be deemed to be: (1) the date of receipt
if delivered personally or by mail or overnight delivery
service, or (2) the date of transmission if by facsimile.
Either party may change its address or designee for purposes
hereof by informing the other party in writing of such action
and the effective date of such change.
17. FORCE MAJEURE
Neither party shall be liable for delays or breaches hereof
resulting from events or acts beyond the control of such
party, including but not limited to acts of God, strikes,
lockouts, riots, acts of war, epidemics, governmental
regulations, and natural disasters. Upon the occurrence of
such event, the party whose performance is affected shall use
reasonable efforts to notify the other party of the nature and
extent of any such condition and negotiate its affects.
18. COMPLETE AGREEMENT
This Agreement constitutes the complete agreement and
understanding with respect to the subject matter hereof
between the parties.
MITSUBISHI Corporation SPACEHAB, Inc.
By: By:
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Name: Name:
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Title: Title:
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