EXHIBIT 10.29
REDACTED FOR CONFIDENTIALITY
FIXED PRICE CONTRACT
BETWEEN
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC.
AND
▇▇▇▇▇▇ SPACE & COMMUNICATIONS COMPANY
FOR
GALAXY X HS601HP
SPACECRAFT, RELATED SERVICES AND DOCUMENTATION
CONTRACT NO. 96-HCG-001
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TABLE OF CONTENTS
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PAGE
ARTICLE 1. EXHIBITS AND INCORPORATIONS.................................... 2
ARTICLE 2. ORDER OF PRECEDENCE............................................ 3
ARTICLE 3. SPACECRAFT, DOCUMENTATION AND RELATED SERVICES................. 4
ARTICLE 4. DELIVERABLES AND SCHEDULE...................................... 6
ARTICLE 5. PRICE.......................................................... 7
ARTICLE 6. PAYMENTS....................................................... 8
ARTICLE 7. SPACECRAFT LAUNCH DATE......................................... 12
ARTICLE 8. BUYER-FURNISHED ITEMS.......................................... 14
ARTICLE 9. INSPECTION AND ACCEPTANCE...................................... 17
ARTICLE 10. ACCESS TO WORK IN PROCESS...................................... 18
ARTICLE 11. TERMINATION FOR DEFAULT; LIMITATION OF LIABILITY............... 19
ARTICLE 12. EXCUSABLE DELAYS............................................... 21
ARTICLE 13. AMENDMENTS..................................................... 22
ARTICLE 14. TITLE AND RISK OF LOSS......................................... 23
ARTICLE 15. SPACECRAFT WARRANTY............................................ 26
ARTICLE 16. INDEMNIFICATION................................................ 28
ARTICLE 17. SPACECRAFT NOT LAUNCHED WITHIN SIX MONTHS AFTER ACCEPTANCE..... 29
ARTICLE 18. PATENT/COPYRIGHT INDEMNITY..................................... 30
ARTICLE 19. RIGHTS IN INVENTIONS........................................... 32
ARTICLE 20. INTELLECTUAL PROPERTY RIGHTS................................... 34
ARTICLE 21. FURNISHED DATA AND INFORMATION, DISCLOSURE AND USE............. 35
ARTICLE 22. PUBLIC RELEASE OF INFORMATION.................................. 37
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THIS CONTRACT is entered into on the 20th day of March, 1997, by and between
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC. (herein called "Buyer" or "HCG"), a
California corporation having a place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ SPACE AND COMMUNICATIONS COMPANY (herein
called "Contractor," "Seller" or "HSC"), a Delaware corporation having a place
of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, HCG desires to purchase, and Contractor desires to provide
communications Spacecraft, Documentation, and Related Services as hereinafter
specified, and the Parties desire to define the terms and conditions under which
the same shall be furnished,
NOW, THEREFORE, the Parties hereto agree as follows:
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ARTICLE 1. EXHIBITS AND INCORPORATIONS
The following documents are hereby incorporated and made a part of this
Contract with the same force and effect as though set forth herein:
1.1 Exhibit A - Galaxy X Statement of Work - dated May 21, 1996.
1.2 Exhibit B - Galaxy X Spacecraft Specification - dated July 19, 1996.
1.3 Exhibit C - Galaxy X Spacecraft Integration Test Plan - dated September 24, 1996.
1.4 Exhibit D - Galaxy X Product Assurance Plan - dated June 24, 1996.
1.5 Exhibit E - Certain Documentation - dated March 5, 1997.
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ARTICLE 2. ORDER OF PRECEDENCE
In the event of any conflict or inconsistency among the provisions of this
document and the exhibits attached and incorporated into this Contract,
such conflict or inconsistency shall be resolved by giving precedence to
this document, and then to the attached and incorporated exhibits in the
order listed in Article 1 herein, entitled "Exhibits and Incorporations."
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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ARTICLE 3. SPACECRAFT, DOCUMENTATION AND RELATED SERVICES ("DELIVERABLES")
HCG shall purchase from Contractor and Contractor shall sell and furnish
the following:
3.1 Contractor shall provide the necessary personnel, material, services
and facilities to design, fabricate, test and deliver as required and
perform work in accordance with the requirements of Exhibits A, B, C
and D hereto, one (1) HS601HP type satellite for Galaxy Flight X
(hereinafter referred to as "Spacecraft" Documentation and Related
Services (as defined in Article 4).
3.2 All materials and services specified in Exhibit A, entitled "Galaxy X
Statement of Work," shall meet the requirements of Exhibit B, entitled
"Galaxy X Spacecraft Specification."
3.3 If Contractor has not made delivery *********************************
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or if prior to the Launch Date, *************************************
************************************************************* Buyer at
its election may:
(a) ***********************************************************
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(b) ***********************************************************
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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Any such election shall be made by Buyer in writing. In either case
(a) or (b) above ***************************************************
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3.4 ********************************************************************
********************************************** in accordance with: (i)
current directives and instructions in the ▇▇▇▇▇▇ Spacecraft Operators
Handbook, utilized at either Buyer's Operations Control Center (OCC)
or Contractor's Mission Control Center (MCC); and (ii) any other
Documentation utilized, including that Documentation which takes into
consideration the unique or special characteristics of the contracted
Spacecraft. *********************************************************
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********************* Contractor has responsibility and liability for
the Mission Control Center. Buyer has responsibility and liability for
the Operations Control Center and its associated ground station(s).
3.5 The Spacecraft, Documentation and Related Services described above
shall be delivered to HCG at the indicated locations on the dates set
forth in Article 4 entitled, "Deliverables and Schedule" herein.
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ARTICLE 4. DELIVERABLES AND SCHEDULE
4.1 The following deliverables to be furnished under this Contract shall
be furnished on or before the dates specified below:
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DATE OF DELIVERY DELIVERY OR
DELIVERABLE(S) OR PERFORMANCE PERFORMANCE PLACE
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1. One Spacecraft One month prior to Cape Canaveral Air
("Spacecraft") Launch* Station, Florida
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2. Launch Support, In Accordance with . Cape Canaveral, Florida
Mission Operations and Exhibit ▇ . ▇▇▇▇▇▇▇, California
In-Orbit Testing . Castle Rock, Colorado
("Related Services") . El Segundo, California
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3. Documentation In Accordance with ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
("Documentation") Exhibit A Long Beach, California
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* Launch Period is 01 April - 30 June 1998
4.2 The Contractor will arrange transportation required for Items 1, 2 and 3
above.
4.3 Contractor shall be responsible for obtaining and maintaining all U.S.
Government export licenses or authorizations required for the performance
of this Contract.
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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ARTICLE 5. PRICE
5.1 The total price (the "Contract Price") for Contractor to provide the
Spacecraft, Documentation and Related Services as defined in Article 3
herein is *************************************. This price shall be
paid in accordance with Paragraph 6.2 of Article 6 entitled
"Payments." However, ********************************* of this
Contract Price shall be at risk ("Risk Sum") in accordance with
Paragraph 5.2 below.
5.2 In the event that:
(i) the Launch Date ("Risk Date"), as defined in Paragraph 7.1.2 of
Article 7, is delayed due primarily to the fault of the
Contractor by its actions or inactions (and not the Launch
Vehicle Provider and/or HCG);
(ii) such actions or inactions of the Contractor cause an actual
delay in the launch of the Spacecraft; and
(iii) the delay is not excusable in accordance with Article 12 of this
Contract;
then *************************************************************
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**********************************************. The applicability of
this Paragraph 5.2 shall be determined no earlier than twenty-four
hours after the Risk Date. The Buyer shall be required to pay the Risk
Sum for a Satellite which is timely delivered for purposes of storage
unless such storage is required due to any delay described in the
first sentence of this Paragraph 5.2; provided, however, that if Buyer
directs that the Spacecraft be delivered into storage for Buyer's
convenience, then the Risk Date shall be extended to a revised date
established by the Parties. In the event of any delay described in the
first sentence of this Paragraph 5.2, then Buyer's rights and remedies
in Article 11 and Article 5 shall both apply.
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5.3 "Risk Sum Payment Date" shall mean the date that is the later to occur
of: (i) the Risk Date plus thirty (30) days; or (ii) if applicable,
the date that Contractor is notified under Paragraph 3.3 that it may
turn operation of the Spacecraft over to Buyer.
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ARTICLE 6. PAYMENTS
6.1 Pursuant to the terms set forth in this Article 6, and subject to
HCG's rights, defenses and remedies as expressly stated in this
Agreement, HCG shall pay to Contractor the Contract Price as stated in
Article 5 herein for the Spacecraft, Documentation, and Related
Services under this Contract.
6.2 Invoices shall be prepared and submitted by Contractor in a form
reasonably acceptable to Buyer. Payments to Contractor shall be made
in accordance with the payment plan specified in subparagraph 6.3
below:
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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6.3 Payment Plan: March 96 - April 98
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TABLE 6.3
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GALAXY 10 - PAYMENT PLAN
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AMOUNT CUMULATIVE
MONTH $M AMOUNT $M
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
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are filed separately with the
Securities and Exchange Commission
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2 *********************************************************************
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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6.4 Payment Schedule Revision: The payment plan established in Paragraph
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6.3 above is based upon an April 1998 launch date. If the launch date
established in accordance with Article 7, Paragraph 7.1.2 is later
than April 1998, the payment plan in Paragraph 6.3 of this Article
shall be revised by mutual agreement of the Parties to reflect the
established Launch Date.
6.5 HSC shall not be obligated to deliver the Spacecraft to the Launch
Site if there are any outstanding Delinquent Payments owed by HCG to
HSC under this contract one month prior to shipment of the Spacecraft
from the HSC facility. "Delinquent Payments" are defined as those
payments not received by HSC within thirty (30) days of the dates due
as defined in Paragraph 6.5.2 below. Once HCG has paid HSC for any
"Delinquent Payments" and any interest accrued in accordance with
Paragraph 6.7 below, HSC shall use its reasonable best efforts to ship
the Spacecraft to the Launch Site so as to enable launch on the
scheduled Launch Date and in any event to make shipment as soon as
practicable and no later than sixteen (16) weeks after payment by HCG
of such Delinquent Payments. HCG will be responsible for and will pay
to HSC any reasonable costs and *** profit on such costs that HSC may
incur as a result of a delay in delivery due to HCG's Delinquent
Payments. Notwithstanding the foregoing, this Section 6.5 shall not
relieve Contractor of its obligation to deliver the Spacecraft, and no
"Delinquent Payment" shall be deemed to have occurred, due to any non-
payment by HCG on account of an alleged breach by Contractor or other
dispute as to such payment. In such event, HCG shall, within thirty
(30) days of the date such payment is due, pay the full amount of such
payment into an interest-bearing escrow account to be established at
Bank of America, Concord, California. Upon settlement of the dispute
as to such payment and alleged breach in accordance with Article 32,
the Party entitled to the amount in escrow shall receive such amount
together with all accrued interest thereon and the other Party shall
pay all costs and fees associated with the escrow of such amount.
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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6.6 Invoice
6.6.1 Invoices submitted to HCG for payment shall contain a cross-
reference to the Contract number and the date specified in the
Paragraph 6.3 Payment Plan. Contractor shall submit one (1)
original invoice in each instance to:
▇▇▇▇▇▇ Communications Galaxy, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇. ▇▇▇/▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Accounts Payable - ▇▇▇▇ ▇▇▇▇▇▇
6.6.2 Invoice amounts, as specified in Paragraph 6.3, provide for
▇▇▇▇▇▇▇▇ to be submitted by the 15th day of each month and
shall be paid by HCG within thirty (30) days upon receipt of
the invoice by HCG.
6.7 Late Payments
In the event of a failure by the Buyer or the Contractor to make a
payment required pursuant to this Contract, the delinquent Party shall
pay interest at the rate of *************************** on the overdue
amount for the number of days that the payment is overdue, commencing
on the date payment is due and terminating on the date the overdue
amount is paid in full. Notwithstanding the foregoing, this Section
6.7 shall not apply to any payment made into escrow in accordance with
Section 28.4.
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ARTICLE 7. SPACECRAFT LAUNCH DATE
7.1 This Contract is written on the basis that one (1) Spacecraft supplied
hereunder will be Launched on an Delta III launch vehicle within the
Launch Period set forth below and within which a slot, date and window
shall be established in accordance with Paragraphs 7.1.1, 7.1.2, and
7.1.3 below:
Spacecraft Launch Vehicle Launch Period
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Galaxy X Delta III 01 April-30 June 1998
(inclusive)
7.1.1 Launch Slot Definition. A thirty (30) day period of time within
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a Launch Period during which the Launch will occur. The Launch
Slot within the Launch Period shall be established by the
Parties not later than one (1) year prior to the first day of
the applicable Launch Period and once established, shall become
an express term of this Contract.
7.1.2 Launch Date ("Risk Date") Defined. The calendar date within the
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Launch Slot during which a Launch will occur. The Launch Date
within the Launch Slot shall be established by the Parties no
later than six (6) months prior to the first day of the
applicable Launch Slot and once established, shall become an
express term of this Contract.
7.1.3 Launch Window Definition. A daily period of time within the
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Launch Date during which the Launch can occur and meet mission
requirements. The Launch Window shall be established by the
Parties no later than forty five (45) days prior to the Launch
Date and once established, shall become an express term of this
Contract.
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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7.2 The Contract Price set forth in Paragraph 5.1 includes Contractor
furnished launch support services, post launch support services, in-
orbit test support services, and post title transfer monitoring and
command of the Spacecraft if Buyer invokes the remedial provisions of
Article 3, Paragraph 3.3. The Contract Price set forth in Paragraph
5.1 assumes the launch of the Spacecraft on a Delta III launch vehicle
within thirty (30) calendar days after delivery of the Spacecraft to
the Launch Site.
7.3 No less than sixteen (16) weeks prior to the launch date, Buyer shall
order Contractor by notice in writing to commence launch campaign
preparations including, but not limited to, reserving ground and air
or marine transportation for hardware shipment to the Launch Site,
installing necessary communications links to the Launch Site, etc.
7.4 If the Spacecraft launch date defined in Paragraph 7.1 is postponed
for any reason other than the sole fault of Contractor, excluding any
postponement due to an Excusable Delay as defined in Article 12, the
Parties shall negotiate in good faith to determine an equitable
adjustment to the price and affected terms of this Contract, if any.
If the cost of supplies or materials made obsolete or excess as a
result of a such postponement is included in the equitable adjustment,
HCG shall have the right to prescribe the manner of disposition of
such supplies or materials. Costs included in the equitable adjustment
shall include but not be limited to: support personnel standby; extra
travel expenses; transport termination or rescheduling fees; and
installation/de-installation of communication links to the Launch Site
and a profit rate of *********************.
7.5 Notwithstanding the foregoing, if the Spacecraft Launch Date defined
in Paragraph 7.1 is postponed by either Party due to an Excusable
Delay, as defined in Paragraph 12.1 herein, the terms of Article 12
herein shall govern such postponement.
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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ARTICLE 8. BUYER-FURNISHED ITEMS
8.1 The following facilities, equipment, and services shall be furnished
by HCG at no cost to Contractor, in a timely manner, so as to enable
Contractor to perform the work herein in accordance with the
Spacecraft Launch Dates as described in Article 7 of this Contract.
1) Facilities (buildings, power, phones and data lines) and
enumerated services: (i) transportation of the Spacecraft and
related test equipment within the launch site and between the
launch processing facility and the launch site (ii) storage of the
Spacecraft and related test equipment for all force majeure events
and/or launch vehicle delays (iii) fueling (iv) photographs and
(v) interface hardware at the Launch Site.
2) Reservation and procurement of the launch services and associated
services.
Contractor will provide preliminary requirements of Item 1 above to
Buyer no later than 6 months after EDC to assist Buyer's compliance
with this Article. Prior to Buyer's execution of a Launch Services
Contract with the Launch Services provider, Contractor will be allowed
to review the list of basic and optional service which Buyer shall
procure.
In the event that the Buyer-Furnished Items set forth above are not
suitable for the intended purpose or are not provided in a timely
manner, excluding any excusable delay as defined in Article 12 herein,
then HCG shall be liable to Contractor for all applicable costs which
shall include but not be limited to; procurement or rental of suitable
substitutes for such Buyer Furnished Items at no higher than market
prices; with title and possession of all such procured items reverting
to Buyer after Contractor's use under this Agreement; support
personnel standby; extra travel expenses; transport termination or
rescheduling fees; and installation/de-installation of communication
links to the Launch Site and a profit rate of
************************************.
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8.2 Contractor shall maintain a system to ensure the adequate control and
protection of HCG's Property. For the purposes of this Article, HCG
Property shall be defined as any item which HCG provides to the
Contractor or directs Contractor to maintain in storage or an
inventory account under this Contract. Upon receipt of notification
from HCG, the Contractor shall complete and return within fifteen (15)
working days a Property System Certification describing the system
that will be used to control HCG's Property. Additionally, HCG's
representative may, at its option and at no additional cost to HCG,
conduct surveillance at a reasonable time of the Contractor's Property
Control System as HCG deems necessary to assure compliance with the
terms and conditions of this Article.
8.3 Contractor shall, commencing with its receipt and during its custody
or the use of any HCG's Property, accomplish the following:
A. Establish and maintain inventory records and make such records
available for review upon HCG's request;
B. Provide the necessary precautions to guard against damage from
handling and deterioration during storage;
C. Perform periodic inspection to assure adequacy of storage
conditions; and
D. Ensure that HCG's Property is used only for performing this
Contract, unless otherwise provided in this Article or approved
by the cognizant contracting officer.
8.4 Contractor shall not modify, add-on, or replace any HCG Property
without HCG's prior written authorization. Contractor shall
immediately report to HCG's contract representative the loss of any
HCG Property or any such property found damaged, malfunctioning, or
otherwise unsuitable for use. The Contractor shall determine and
report the probable cause and necessity for withholding such property
from use.
8.5 Upon termination or completion of this Contract, and upon request by
HCG, the Contractor shall perform a physical inventory, adequate for
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accountability and disposition purposes, of all HCG's Property
applicable to such terminated or completed agreement and shall cause
its subcontractors and suppliers at every tier to do likewise.
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CONFIDENTIAL TREATMENT REQUESTED
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REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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ARTICLE 9. INSPECTION AND ACCEPTANCE
9.1 Inspection of all Hardware, documentation and Contractor's services
provided hereunder shall take place in accordance with the terms of
Article 10, entitled "Access to Work in Process," herein.
9.2 Preliminary Acceptance of the Spacecraft shall occur when all in-plant
tests required to be performed by Contractor for the Hardware have
been completed and the Contractor has demonstrated at the pre-ship
review that the Hardware meets the requirements of Exhibit B and D, at
which time HCG shall accept the Hardware on a Preliminary basis in
writing within five (5) business days subject to completion of Launch
Site tests specified in Exhibit C, Galaxy X Spacecraft Integration
Test Plan. If the Hardware is unacceptable, Contractor shall promptly
and at its expense, rectify the unsatisfactory Hardware and resubmit
the Hardware for acceptance by HCG as provided above. In either case,
the Hardware shall be deemed accepted upon failure of HCG to notify
Contractor in writing within the above five (5) business days that it
is accepted, rejected or that in HCG's opinion further corrective
action must be taken by the Contractor.
9.3 Final Acceptance of the Spacecraft shall occur upon the earliest of i)
the completion of In-orbit Testing in accordance with Exhibit A, ii)
fifty (50) days after Intentional Ignition (as defined in Article 15,
Paragraph 15.2 of this Contract) or iii) immediately before a Partial
Failure, Total Failure or Total Constructive Failure (as each such
term is defined in the applicable ▇▇▇▇▇▇ Communications Galaxy Launch
Insurance Contract or successor contract), which occurs at or after
Intentional Ignition. HCG shall have access to Launch Site test
results during the launch campaign in accordance with the provisions
of Article 10, Paragraph 10.1 "Access to Work in Process."
9.4 With respect to deliverable Hardware which HCG orders Contractor to
store, the Hardware shall be stored at a location to be negotiated and
Final Acceptance shall occur at the end of the ************ warranty
period as set forth in Article 15 herein, entitled "Spacecraft
Warranty," or such other event mutually agreed upon between the
Parties.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
ARTICLE 10. ACCESS TO WORK IN PROCESS
10.1 Contractor shall afford HCG access to work in progress being performed
at Contractor's plants and at the Launch Site pursuant to this
Contract, including technical data, documentation, and hardware, at
reasonable times during the period of Contract performance, provided
such access does not unreasonably interfere with such work or require
the disclosure of Contractor's proprietary information to third
Parties and subject to (i) HSC's Security Procedures and (ii) U.S. or
Foreign Government Regulations.
10.2 To the extent that the Contractor's major subcontracts permit,
Contractor shall afford HCG access to work being performed pursuant to
this Contract in subcontractor's plants in the company of Contractor's
representatives.
Contractor shall exert reasonable effort in subcontracting to obtain
permission for HCG access to those major subcontractors' plants. Major
subcontracts are defined as those subcontracts in excess of
*********************************************.
10.3 HCG shall have the right to witness on a non-interference basis all
system and subsystem tests scheduled by Contractor in connection with
the performance of work under this Contract. If the system or
subsystem tests are performed by a subcontractor of HSC, HSC shall
take all reasonable steps to secure HCG's access to the
subcontractor's facility or facilities. HCG's right to witness testing
shall be on a non-interference basis with the subcontractor's
activities and subject to (i) any subcontractor security procedures
and (ii) U.S. or Foreign Government Regulations.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
ARTICLE 11. TERMINATION FOR DEFAULT; LIMITATION OF LIABILITY
11.1 Subject to provisions of Article 3 entitled "Spacecraft, Documentation
and Related Services," Article 5 entitled "Price" and Article 12
entitled "Excusable Delays," Buyer may issue a written notice of
default to Contractor if: (i) Contractor fails
************************************************
*************************************************** as confirmed in
writing by the Contractor's and Buyer's Senior Executives and such
failure may result in a delay in delivery of more than ****** or (ii)
the delivery of the Spacecraft or Contractor's performance of any
material obligation under the Contract has been delayed due to the
primary fault of the Contractor for more
than****************************. Subsequent to the issuance of said
notice, the Buyer may terminate this Contract and thereafter elect
remedies as identified in Paragraph 11.2 below.
11.2 If Buyer terminates this Contract, in whole or in part, as provided in
Paragraph 11.1 herein, Buyer, at its sole option, shall either: (i)
take title to all deliverable hardware, all hardware in process which
ultimately would have been deliverable by Contractor and all drawings
and data produced by Contractor, the cost of which has been charged or
becomes chargeable to any work terminated plus all reasonable
reprocurement costs up to a maximum amount of: (a)
********************************************* in the event of a
termination of this Contract solely with respect to Documentation
and/or Related Services or (b) ******************************** with
respect to a termination of the entire Contract or a termination with
respect to the Spacecraft; or (ii) receive a refund of all payments
submitted to Contractor by the Buyer for performance of this Contract
for the portion terminated by Buyer, and Contractor shall retain title
and possession to all terminated Hardware which ultimately would have
been deliverable by Contractor. Contractor shall continue the
performance of this Contract to the extent not terminated under the
provisions of this Article.
11.3 Notwithstanding the other provisions of this Article, there will be no
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
termination for default after Intentional Ignition of the Launch
Vehicle.
11.4 If, after termination of this Contract under the provisions of this
Article, it is determined for any reason that Contractor was not in
default under the provisions of this Article, or that the default was
excusable under the provision of Article 12 entitled "Excusable
Delays," then the Contractor shall be entitled to be paid for its
actual reasonable costs plus *** profit, less amounts previously paid
by the Buyer and upon making payment in full, the Buyer shall take
title to all tangible work in process inventories generated under the
Contract. For purposes of this Paragraph 11.4, Contractor's "actual
reasonable costs" shall mean all costs expended by Contractor for all
work done under this Contract up to the date of termination,
settlements with subcontractors for work performed prior to
termination, and Contractor's reasonable costs related to termination
which would otherwise not have been incurred.
11.5 Except as otherwise provided in the Contract, the rights and remedies
of the Parties provided in this Article shall be in lieu of any other
rights and remedies provided by law or in equity in the event
Contractor or Buyer fails to meet its obligations under this Contract.
Buyer shall have no other rights or remedies for late delivery of the
Spacecraft, Documentation and Related Services under this Contract
except for those rights and remedies expressly provided for in this
Contract.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
ARTICLE 12. EXCUSABLE DELAYS
12.1 If either Party or a subcontractor of either Party is delayed by act
of God, or of the public enemy, fire, flood, earthquake, epidemic,
quarantine restriction, strike, walkout, freight embargo, or any other
event which is beyond their control or does not arise from the acts or
omissions of either Party or its respective subcontractors, said delay
shall constitute an excusable delay ("Force Majeure Events"). In the
event of an excusable delay, there shall be an equitable adjustment to
the time of delivery and/or performance stated in this Contract. The
affected Party shall give notice in writing to the other Party within
10 working days that an excusable delay condition exists after
learning of such delay. Such notification shall include the cause of
the excusable delay, the expected length of the excusable delay, and
alternate plans to mitigate the effect of the excusable delay.
12.2 If the affected Party, as defined in Paragraph 12.1 above, requests or
experiences, on a cumulative basis, excusable delay(s) greater than
********** days, the Parties shall enter into good faith negotiations
to develop a mutual course of action and/or an equitable adjustment to
the affected terms of this Agreement.
12.3 Notwithstanding the foregoing, if the Launch Date defined in Paragraph
7.1 herein is delayed due to a Force Majeure event affecting either
Party or a subcontractor thereof at any point in time after the
shipment of the Spacecraft to the Launch Site has occurred, HCG shall
reimburse Contractor for all reasonable expenses incurred as a result,
including without limitation expenses for: support personnel standby;
extra travel expenses; transport termination or rescheduling fees; and
installation/de-installation of communication links to the Launch
Site.
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ARTICLE 13. AMENDMENTS
The terms and provisions of this Contract shall not be amended or modified
without specific written provision to that effect, signed by the Authorized
Representative(s) of both Parties. These Authorized Representative(s) are
identified in Article 26, "Notices and Authorized Representative(s)." No
oral statement of any person shall in any manner or degree modify or
otherwise affect the terms and provisions of this Contract.
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ARTICLE 14. TITLE AND RISK OF LOSS
14.1 Title and risk of loss or damage in respect of all items to be
delivered under this Contract shall pass from Contractor to HCG as
follows:
14.1.1 Risk of loss of the Spacecraft and title shall pass from
Contractor to HCG upon the earliest of: (i) the completion of
In-orbit Testing in accordance with Exhibit A, (ii) fifty (50)
days after Intentional Ignition (as defined in Article 15,
Paragraph 15.2 of this contract) or (iii) immediately before a
Partial Failure, Total Failure or Total Constructive Failure
(as each such term is defined in the applicable ▇▇▇▇▇▇
Communications Galaxy Launch Insurance Contract or successor
contract) which occurs at or after Intentional Ignition.
14.1.2 In respect to a Spacecraft which HCG directs Contractor to
store, title and risk of loss shall remain with the Contractor
until Final Acceptance as specified in Article 9.4 herein.
14.1.3 Notwithstanding Paragraph 14.1.2 above, upon removal of the
Spacecraft from storage, the Contractor shall not assume risk
of loss relative to a Battery which HCG directs Contractor to
replace after the five-year storage period which disqualifies
the battery for a 12-year mission. In that event, Article 29
herein entitled "Effects of Storage on Batteries," shall apply.
14.1.4 "Risk of Loss" for purposes of this Article 14 is limited to
the responsibility and liability for a Partial Failure, Total
Failure or Total Constructive Failure (as each such term is as
defined in the applicable ▇▇▇▇▇▇ Communications Galaxy Launch
Insurance Contract or successor contract). Responsibility and
liability for the Spacecraft prior to intentional ignition is
with the Contractor.
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14.2 In the event of damage to or destruction of Hardware when Contractor
shall have risk of loss, Contractor shall repair or replace (at
Contractor's option) said Hardware. The Buyer shall participate in the
decision to repair or replace said Hardware and the provisions of
Article 15 shall apply.
14.3 Insurance Provided By Contractor. The Contractor shall, at its own
--------------------------------
expense, provide and maintain the following insurance:
14.3.1 "All Risk" Insurance
--------------------
(i) The Policy for "All Risks" insurance shall insure the
Contractor and name Buyer as additional insured and Loss
Payee as their interest may appear.
(ii) The insurance shall cover the Spacecraft while in or
about the Contractor's and subcontractors' plants, while
at other premises which may be used or operated by the
Contractor for construction or storage purposes, while in
transit, or while at the Designated Launch Site until
Intentional Ignition, or while Spacecraft is stored by
the Contractor at HCG's direction until Final Acceptance
as specified in Article 9.4.
(iii) Such insurance shall be sufficient to cover the full
replacement value or selling price of the Spacecraft and
may be issued with deductibles, for which losses shall be
borne by the Contractor.
(iv) This "All Risk" insurance shall be in force from the time
of the Effective Date of this Contract and shall continue
in effect until Contractor's liabilities have expired at
intentional ignition.
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14.3.2 Third Party Liability Insurance
-------------------------------
(i) The Policy(s) for Third Party Liability insurance
shall be written on forms the Buyer may review and shall
include Buyer as additional insured.
(ii) This Third Party Liability insurance shall be in force
from the time of the Effective Date of this Contract and
shall continue in effect until Contractor's liabilities have
expired at intentional ignition.
(iii) The Policy(s) may be issued with deductibles, for
which losses shall be borne by the Contractor.
14.4 General Insurance Requirements
------------------------------
(i) The Contractor shall, upon request, provide to the
Buyer certificates of the Insurance Policy(s) issued by an
agent of the Contractor's Insurer(s) for coverage which the
Contractor is required to provide pursuant to the provisions
of these Articles.
(ii) All Policies of insurance to be provided and
maintained pursuant to these Articles shall require the
insurer(s) or its authorized agent(s) to give each insured
not less than thirty (30) days prior written notice in the
event of cancellation or any proposed material change in
such policies, except for ten (10) days prior written notice
in the event of cancellation due to non-payment of premium.
(iii) The Contractor may also acquire and maintain, at its
own expense, other insurance for amounts and perils, and
upon such terms, conditions and deductibles as it may deem
advisable or necessary to cover any loss or damage to
persons or property that may occur as a result of the
performance of this Contract.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
ARTICLE 15. SPACECRAFT WARRANTY
15.1 Contractor warrants that the Spacecraft, upon successful completion of
Spacecraft in plant Tests pursuant to Article 9 herein, shall be free
from any defects in material or workmanship and shall conform to the
applicable specifications and drawings, as evidenced by the acceptance
criteria in Exhibits A-D herein.
15.2 This warranty shall start from the date of Preliminary Acceptance of a
Spacecraft as stated in Article 9 herein, entitled "Inspection and
Acceptance," and continue for a period of ************************ or
until the Intentional Ignition (defined herein as the "Intentional
Ignition of any rocket motor on the first stage of the launch
vehicle") of the applicable launch vehicle, whichever is earlier. ***
*********************************************************************
*********************************************************************
*********************************************************************
******************* ("Warranty Time Period"). Contractor shall not be
liable in Contract or in Tort for any incidental, special, contingent,
or consequential damages.
15.3 HCG shall have the right at any time during the Warranty Time Period
to reject any goods not conforming to this warranty and require that
Contractor, at its expense, correct or replace (at Contractor's
option) such goods with conforming goods. If any time during the
Warranty Time Period Contractor fails to correct or replace such
defective goods and fails to initiate reasonable efforts to correct or
replace such defective goods within a reasonable period after written
notification and authorization from HCG, HCG may then, by contract or
otherwise, correct or replace such defective goods and equitably
adjust the price.
15.4 Except as otherwise expressly agreed upon in this Contract, Contractor
shall have no liability, or responsibility in Contract or in Tort with
respect to a Spacecraft after Intentional Ignition (as defined in
Paragraph 15.2) of the launch vehicle.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
15.5 THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING FITNESS FOR PARTICULAR PURPOSE OR MERCHANTABILITY
AND THE REMEDY PROVIDED HEREIN IS THE SOLE REMEDY FOR FAILURE BY
CONTRACTOR TO FURNISH A SATELLITE THAT IS FREE FROM MATERIAL DEFECTS
IN MATERIAL OR WORKMANSHIP AS SET FORTH IN PARAGRAPH 15.1 ABOVE. ALL
OTHER WARRANTIES OR CONDITIONS IMPLIED BY ANY OTHER STATUTORY
ENACTMENT OR RULE OF LAW WHATSOEVER ARE EXPRESSLY EXCLUDED AND
DISCLAIMED. CONTRACTOR AND ITS SUBCONTRACTORS SHALL HAVE NO LIABILITY
IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) OR IN ANY OTHER MANNER
WHATSOEVER FOR THE SATELLITE AFTER INTENTIONAL IGNITION OTHER THAN AS
EXPRESSLY PROVIDED IN THIS CONTRACT.
15.6 Any limitations on warranties, liability or requests for
indemnification from liability for the malfunction of delivered items
which are imposed upon the Contractor by its various equipment
suppliers shall be passed on directly to Buyer provided, however,
nothing therein shall decrease or invalidate the rights of the Buyer
during, or the length of, the Warranty Time Period as stated in this
Article.
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ARTICLE 16. INDEMNIFICATION
16.1 Each Party shall indemnify and hold the other and/or all its officers,
agents, servants, subsidiaries, affiliates, parent companies and
employees, or any of them, harmless from any liability or expense in
connection herewith on account of damage to property (excepting other
Spacecraft in flight) and injuries, including death, to all persons
including but not limited to employees of the Parties, and their
subcontractors, and of all other persons performing any part of the
work hereunder, arising from any occurrence caused by an negligent act
or omission of the indemnifying Party or its subcontractors, or any of
them in connection with the work to be performed by such Party under
this Contract. The indemnifying Party shall have the right, but not
the obligation, to participate in any legal or other proceedings
concerning claims for which it is indemnifying under this Article 16
and to direct the defense of such claims. However, with respect to
such legal or other proceedings, the indemnifying Party shall pay all
expenses (including attorneys fees incurred by the indemnified Party
in connection with such legal or other proceedings) and satisfy all
judgments, costs or other awards which may be incurred by or rendered
against the indemnified Party. The indemnifying Party shall not settle
any such claim, legal or other proceeding without first giving thirty
(30) days prior written notice of the Terms and Conditions of such
settlement and obtaining the consent of the indemnified Party, which
consent shall not be unreasonably withheld or delayed.
16.2 Notwithstanding the foregoing, neither the Contractor nor its
subcontractors shall have any liability in Contract or in Tort, for
damages to or caused by the Spacecraft after Intentional Ignition (as
defined in Paragraph 15.2), and Buyer shall obtain waivers of
subrogation rights from Buyer's insurers against Contractor, and
affiliates and subcontractors of Contractor.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
ARTICLE 17. SPACECRAFT NOT LAUNCHED WITHIN SIX MONTHS AFTER ACCEPTANCE
17.1 If the Spacecraft is not launched within six (6) months after its
Preliminary Acceptance per Article 9, entitled "Inspection and
Acceptance," and is subsequently ordered to be launched within
************* following its Preliminary Acceptance, it is agreed that
such Spacecraft shall be returned at Contractor's option at
Contractor's expense, to Contractor's facility for inspection and
refurbishment. Any inspection and refurbishment undertaken by
Contractor to meet the requirements of Article 15 entitled,
"Spacecraft Warranty," shall be at Contractor's expense, including
Spacecraft transit insurance.
17.2 If the Spacecraft is not launched within six (6) months after its
Preliminary Acceptance and is subsequently ordered to be launched
later than ******* ***** following its Preliminary Acceptance, it is
agreed that such Spacecraft shall be returned, at HCG's expense, to
Contractor's facility for inspection and refurbishment. An equitable
adjustment to Contract price for such inspection and refurbishment, to
include a *** profit component shall be negotiated by the Parties
unless the fact that the launch is scheduled for later than
************ **** is due to Contractor's negligent acts or omissions.
17.3 If the Spacecraft is returned to Contractor's facility for inspection
and refurbishment per the terms of Paragraph 17.2 above, all charges
to return such Spacecraft to the Launch Site shall be borne by HCG.
17.4 If the Spacecraft has not been launched within ************** after
its preliminary Acceptance, neither Party shall be further obligated
to the other with respect to such Spacecraft. Disposition of such
Spacecraft shall be at the option of HCG with costs of such
disposition to be borne by HCG.
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ARTICLE 18. PATENT/COPYRIGHT INDEMNITY
18.1 Contractor shall indemnify and hold HCG harmless against any liability
or expense as a result of claims, actions, or proceedings against HCG
alleging the infringement of any trademarks, United States Copyright
or mask work, United States Letters Patent, any other intellectual
property rights, by any article fabricated by Contractor and delivered
to HCG pursuant to this Contract as set forth below.
18.2 Contractor agrees to defend at its own expense any claim, action,
proceeding or request for royalty payments or any claim for equitable
relief or damages against HCG, its officers, employees, agents, or
subsidiaries based on an allegation that the manufacture of any item
under this Contract or the use, lease, or sale thereof infringes any
United States Letters Patent trademark, United States Copyright or
mask work or any other intellectual property right, and to pay any
royalties and other costs related to the settlement of such claim,
action, proceeding or request and to pay the costs and damages,
including reasonable attorney's fees finally awarded as the result of
any claim, action or proceeding based on such request, provided that
Contractor is given prompt written notice of such request or claim by
HCG and given authority and such assistance and information as is
available to HCG for resisting such request or for the defense of such
claim, action or proceeding. Any such assistance or information which
is furnished by HCG at the written request of Contractor is to be at
Contractor's expense.
18.3 In the event that, as a result of any such claim, action, proceeding
or request: a) prior to delivery, the manufacture of any item is
enjoined; or b) after delivery, the use, lease or sale thereof is
enjoined, Contractor agrees to utilize its best effort to either: (1)
negotiate a license or other agreement with plaintiff so that such
item is no longer infringing; or (2) modify such item suitably or
substitute a suitable item therefore, which modified or substituted
item is not subject to such injunction, and to extend the provisions
of this Article thereto. In the event that neither of the foregoing
alternatives is suitably accomplished by Contractor, Contractor shall
be
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
▇▇▇▇▇▇ PROPRIETARY DATA
-----------------------
liable to HCG for HCG's additional costs and damages arising as a
result of such injunction; provided however, that in no event shall
Contractor's entire liability under this Article exceed ******
**********************************. The existence of one or more
claims, actions, proceedings or lawsuits shall not extend such amount.
18.4 The foregoing indemnity shall not apply to any infringement resulting
from a modification or addition, by other than Contractor, to an item
after delivery.
18.5 If the infringement results from the compliance by Contractor with the
Buyer's directed designs, specifications or instructions, the Buyer
will defend or settle, at its expense, any such suit against the
Contractor.
18.6 The foregoing constitutes the Parties' entire obligation with respect
to claims for infringement.
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ARTICLE 19. RIGHTS IN INVENTIONS
19.1 As used in this Contract, "Program Invention" shall mean any
invention, discovery or improvement conceived of and first reduced to
practice in the performance of Work under this Contract. Information
relating to Inventions shall be treated as proprietary information in
accordance with the provisions of this Contract. Rights to inventions
conceived solely by Contractor or its employees shall vest completely
with Contractor.
19.2 Contractor shall be the owner of all Program Inventions invented
solely by Contractor. Contractor grants Buyer a royalty-free,
nonexclusive license in Program Inventions to use Program Inventions
solely for the purposes of maintenance and operation of the Satellite
and delivered Equipment. Contractor agrees that it will not revoke
such license if Buyer is in compliance with the terms of the license.
19.3.1 In the case of joint Inventions, that is, inventions conceived
jointly by one or more employees of both Parties hereto, each
Party shall have an equal, undivided one-half interest in and
to such joint Inventions, as well as in and to patent
applications and patents thereon in all countries.
19.3.2 In the case of such joint Inventions, Contractor shall have the
first right of election to file patent applications in any
country, and Buyer shall have a second right of election. Each
Party in turn shall make its election at the earliest
practicable time, and shall notify the other Party of its
decision.
19.3.3 The expenses for preparing, filing and securing each joint
Invention patent application, and for issuance of the
respective patent shall be borne by the Party which prepares
and files the application. The other Party shall furnish the
filing Party with all documents or other assistance that may be
necessary for the filing and prosecution of each application.
Where such joint Invention application for patent is filed by
either Party in a
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country which requires the payment of taxes, annuities,
maintenance fees or other charges on a pending application or
on an issued patent, the Party which files the application
shall, prior to filing, request the other Party to indicate
whether it will agree to pay one-half of such taxes, annuities,
maintenance fees or other charges. If within sixty (60) days of
receiving such request, the non-filing Party fails to assume in
writing the obligation to pay its proportionate share of such
taxes, annuities, maintenance fees or other charges, or if
either Party subsequently fails to continue such payments
within sixty (60) days of demand, it shall forthwith relinquish
to the other Party, providing that said other Party continues
such payments, its interest in such application and patent and
the Invention disclosed therein, subject, however, to retention
of a paid-up, non-exclusive, non-assignable license in favor of
the relinquishing Party, its parent, and any subsidiary thereof
to make, use, lease and sell apparatus and/or methods under
said application and patent.
19.4 Each owner of a jointly-owned patent application or patent resulting
therefrom shall, provided that it shall have fulfilled its obligation,
if any, to pay its share of taxes, annuities, maintenance fees and
other charges on such pending application or patent, have the right to
grant non-exclusive licenses thereunder and to retain any
consideration that it may receive therefor without obligation to
account therefor to the other Party. In connection therewith, each of
the Parties hereby consents to the granting of such non-exclusive
licenses by the other Party and also agrees not to assert any claim
with respect to the licensed application or patent against any
licensee of the other Party thereunder during the term of any such
license.
19.5 No sale or lease hereunder shall convey any license by implication,
estoppel or otherwise, under any proprietary or patent rights of
Contractor, to practice any process with such product or part, or, for
the combination of such product or part with any other product or
part.
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ARTICLE 20. INTELLECTUAL PROPERTY RIGHTS
Except as provided in Article 19, neither Party shall acquire any rights
with respect to any patent, trademark, trade secret, or any other
intellectual property developed or used by the other Party in the
performance of this Contract.
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ARTICLE 21. FURNISHED DATA AND INFORMATION, DISCLOSURE AND USE
Proprietary Information shall mean any data and information received by one
Party from the other Party, which is identified as proprietary in
accordance with either of the following methods: (i) if in writing, it
shall be marked by the disclosing Party with an appropriate proprietary
legend, or (ii) if disclosed orally, it shall be presented by the
disclosing Party as Proprietary at the time of disclosure and shall be
confirmed by the disclosing Party as Proprietary Information in writing
within fifteen (15) days of its initial oral disclosure.
21.1 The receiving Party agrees to protect such data and information with
the same degree of care which the receiving Party uses to protect its
own confidential data and information;
21.2 The receiving Party shall not disclose or have disclosed to third
Parties, in any manner or form, or otherwise publish such data and
information so long as it remains proprietary without the explicit
authorization of the other Party;
21.3 The receiving Party agrees that it shall use such data and information
solely in connection with the performance of Work under this Contract,
unless otherwise explicitly authorized by or on behalf of the other
Party with the designation of specific data and information and use;
21.4 The foregoing obligations with regard to such data and information
shall exist unless and until such time as:
21.4.1 Such data and information are to the receiving Party or
otherwise publicly available prior to its receipt by the
receiving Party without the default of the receiving Party; or
21.4.2 Such data and information have been lawfully disclosed to the
receiving Party by a Third Party which has the right to
disclose such data; or
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21.4.3 Such data and information are shown by written record to have
been independently developed by the receiving Party; or
21.4.4 Such data and information are otherwise available in the public
domain without breach of this Contract by the receiving Party;
or
21.4.5 Such data and information are disclosed by or with the
permission of the disclosing Party to a Third Party without
restriction; or
21.4.6 Such data and information are released for disclosure in
writing by or with the permission of the disclosing Party.
21.5 Providing HCG shall obtain from its customer(s), a nondisclosure
agreement at least as restrictive as this Article 21 and furnishes a
copy thereof to Contractor, HCG may disclose any proprietary
information to its customer(s) which shall be necessary for HCG and
its affiliates to meet its contractual commitments with its
customer(s).
21.6 Any copyrighted material belonging to a Party to this Contract may be
copied by the other Party as necessary to enable the receiving Party
to perform its obligations under this Contract, provided always that
the copyright legend is retained on the material.
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ARTICLE 22. PUBLIC RELEASE OF INFORMATION
Neither Party shall issue news releases, articles, brochures,
advertisements, prepared speeches, and other information releases
concerning the work performed or to be performed under this Contract by
Contractor or its subcontractors, or any employee or consultant of either,
without first obtaining the prior written approval of the other Party
concerning the content and timing of such release which approval shall not
be unreasonably withheld. The initiating Party shall provide such releases
to the other Party for review within a reasonable time prior to the desired
release date.
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ARTICLE 23. TAXES
The price which shall be paid by HCG for the Spacecraft, Documentation and
Related Services provided under this Contract does not include any State or
local sales or use taxes, or fees or other taxes against real or personal
property, however designated, which may be levied or assessed against
Contractor. With respect to such taxes, HCG shall either furnish Contractor
with an appropriate exemption certificate applicable thereto or pay
Contractor, upon timely presentation of invoices therefor, such amounts
thereof as Contractor may by law be required to collect or pay. HCG shall
be responsible for the payment of all personal property taxes, if any, with
regard to goods which are levied upon subsequent to the date of delivery to
HCG. HCG shall be responsible for any inventory taxes, state taxes or any
other taxes that are assessed to Contractor as a result of storage of the
Spacecraft in accordance with Article 31.
In the event Contractor in the performance of this Contract is required to
pay customs, import duties, value-added or sales taxes, commercial card
fees, other charges, or taxes, or fees, (collectively, "Assessments")
however designated (except for (i) any Assessment based on Contractor's
income and (ii) any Assessment incurred as a result of or associated with
Contractor's manufacture of the Spacecraft), then HCG will reimburse
Contractor for such Assessments within thirty (30) days of written
notification by Contractor of payment; provided, however that, Contractor
shall used its reasonable best efforts to obtain waivers, exemptions and/or
relief from such Assessments when practicable, and HCG shall not be
required to pay any Assessment to the extent any such waiver, exemption or
relief is pending or has been obtained. Notification shall then be
supported by an invoice and attachment(s) evidencing such payment having
been made by Contractor.
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ARTICLE 24. GOVERNING LAW
This Contract shall be deemed made in the State of California and shall be
construed in accordance with the laws of the State of California.
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ARTICLE 25. TITLES
Titles given to the Articles herein are inserted only for convenience and
are in no way to be construed as part of this Contract or as a limitation
of the scope of the particular article to which the title refers.
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ARTICLE 26. NOTICES AND AUTHORIZED REPRESENTATIVES
Any notice or request required or desired to be given or made hereunder
shall be in writing and shall be effective if delivered in person or sent
by mail or by facsimile as indicated below:
1. ▇▇▇▇▇▇ Communications Galaxy Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇. ▇▇▇, ▇/▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: TBD, Contracts Manager
cc: TBD, Director, Systems Engineering &
Technology
Authorized Representative(s): [TBD]
2. ▇▇▇▇▇▇ Space and Communications Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇. ▇▇▇, M/S A374
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Contracts Manager
cc: ▇▇▇▇▇▇ ▇▇▇▇, Program Manager
Authorized Representative(s): [TBD]
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ARTICLE 27. INTEGRATION
This document, with Exhibits, constitutes the entire understanding between
the Parties with respect to the subject matter of this Agreement and
supersedes all previous oral and/or written negotiations, commitments, and
understandings of the Parties.
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ARTICLE 28. CHANGES
28.1 Any changes requested by Contractor during the performance of this
Contract, within the general scope of this Contract, which will add or
delete Work, affect the design of the Satellite, change the method of
shipment or packing, or the place or time of delivery, or will affect
any other requirement of this Contract, shall be submitted in writing
("Change Proposal") to Buyer sixty (60) days prior to the proposed
effective date of the change. If such Contractor requested change
causes an increase or decrease in the total price or other terms of
this Contract, Contractor shall submit a proposal to Buyer detailing
the impact of such change.
28.2 Buyer shall notify Contractor in writing within thirty (30) days after
receipt of the requested change and price adjustment, if any, whether
or not it agrees with and accepts such Change Proposal. If Buyer
agrees with and accepts the Contractor requested Change Proposal,
Contractor shall proceed with the performance of the Contract as
changed and an amendment to the Contract reflecting the Change
Proposal shall be incorporated into the Contract. If Buyer does not
agree with the Contractor requested Change Proposal, the Parties shall
attempt to reach agreement on such Change Proposal. If the Parties are
unable to agree on the requested change and price adjustment, then the
Parties shall proceed with the performance of this Agreement, as
unchanged. In the event the Parties are able to reach agreement on the
change, but not on the price adjustment component, then the Parties
shall elevate such dispute to the Senior Executives of the respective
companies for resolution. If resolution can not be achieved within a
reasonable period of time under the circumstances, Buyer may make a
qualified acceptance of the Change Proposal, accepting all matters
other than price, and issue of price shall be submitted for resolution
by arbitration in accordance with the provisions of Paragraph 32.2
hereof. Pending such resolution of the price issue, the Parties shall
perform their obligations under the Contract as if the Change Proposal
had been accepted; provided, however, that Buyer shall pay any
disputed amount of the price adjustment into an escrow account in
accordance with Paragraph 28.4 hereof on the date such amount would
have been due and payable had the Change
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Proposal been accepted, or if the Change Proposal could result in a
downward adjustment in the Contract Price in excess of the amount
remaining to be paid by the Buyer, Contractor shall deposit the
disputed amount of such excess into an escrow account in accordance
with Paragraph 28.4 hereof. The final change price adjustment achieved
either by the Parties, or through an arbitration award shall be paid
in accordance with the payment plan agreed by the Parties or, if
applicable, by the Arbitrator.
28.3 Buyer may submit to Contractor in writing (a "Change Order Request")
detailing any changes requested by Buyer during the performance of
this Contract, within the general scope of the Contract, which will
add or delete Work, affect the design of the Satellite, change the
method of shipment or packing, or the place or time of delivery, or
will affect any other requirement of this Contract. Contractor shall
respond to such Change Order Request in writing to Buyer within thirty
(30) days after such request. If Contractor determines that the change
requested by Buyer is feasible and can be made at an additional cost
and with no associated delays, then Contractor shall so notify, Buyer
and Contractor shall commence implementing such change. If the
Contractor determines otherwise, then, Contractor shall submit to
Buyer, a proposal detailing the impact of such change and the price
adjustment, if any, (the "Change Order Offer"). Buyer shall notify
Contractor in writing, within thirty (30) days after receipt of
Contractor's Change Order Offer, whether or not it agrees with and
accepts Contractor's Change Order Offer. If Buyer agrees with and
accepts Contractor's Change Order Offer, Contractor shall immediately
proceed with the performance of the Contract as changed and an
amendment to the Contract reflecting such change shall be incorporated
into the Contract. If Buyer does not agree with the Contractor's
Change Order Offer, the Parties shall attempt to reach agreement on
such Change Order Offer. In the event the Parties are able to reach
agreement on the change, but not on the price adjustment component,
then the Parties shall elevate such dispute to the Senior Executives
of the respective companies for resolution. If resolution can not be
achieved within a reasonable period of time under the circumstances,
Buyer may make a qualified acceptance of the Change Order Offer,
accepting all matters other than price, and the issue of price shall
be
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submitted for resolution by arbitration in accordance with the
provisions of Paragraph 32.2 hereof. Pending such resolution of the
price issue, the Parties shall perform their obligations under the
Contract as if the Change Order Offer had been accepted; provided
however, that the Buyer shall pay any disputed amount of the price
adjustment into an escrow account in accordance with Paragraph 28.4
hereof on the date such amount would have been due and payable had the
Change Order Offer been accepted, or if the Change Order Request could
result in a downward adjustment in the Contract Price in excess of the
amount remaining to be paid by Buyer, Contractor shall deposit the
disputed amount of such excess into an escrow account in accordance
with Paragraph 28.4 hereof. The dispute shall then be resolved by
arbitration under the provisions of Article 32, entitled "Disputes."
The final change price adjustment achieved either by the Parties, or
through an arbitration award shall be paid in accordance with the
payment plan agreed by the Parties or, if applicable, by the
Arbitrator.
28.4 Escrow Provisions - Disputed Amounts
Disputed amounts with respect to any change under this Article 28
shall be paid into an interest bearing escrow account to be
established at Bank of America, Concord, California. Upon settlement
of the dispute as to such payment and alleged breach in accordance
with Article 32, the Party entitled to the amount or part thereof in
escrow, shall receive such amount together with all accrued interest
thereon and the other Party shall pay all costs and fees associated
with the escrow of said amount. The placement of disputed amounts into
an escrow account shall not relieve either Party of its remaining
obligations under this contract.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange Commission
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ARTICLE 29. EFFECTS OF STORAGE ON BATTERIES
For Spacecraft batteries to provide the required minimum twelve (12) years
of in-orbit services per Exhibit B, Galaxy X Spacecraft Specification, it
is understood that launch must occur within five (5) years from the date of
activation of the first battery cell. In the event Buyer directs Contractor
to store any deliverable Spacecraft and the period of such storage causes a
launch later than five (5) years from the date of activation of that
Spacecraft's first battery cell and HCG directs Contractor to install
replacement batteries to meet twelve (12) years in-orbit service
requirement, then HCG shall pay Contractor its costs plus a **** profit
rate.
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ARTICLE 30. INTER-PARTY WAIVER OF LIABILITY
30.1 Prior to the time HCG and the Contractor enter the premises at the
Launch Site, they each agree that they will not make a claim against
each other for an event that occurs at the Launch Site premises
involving damage to, loss of, or loss of use of their property or the
property of others in their possession, caused by the fault or
negligence of the other Party to this Contract, or otherwise caused by
any defect in any product manufactured or sold by the other Party to
this Contract. Such claims are waived and each Party will bear its own
losses. HCG will include a comparable clause in each of its contracts
with vendors, subcontractors or customers for services or benefits
expected as a result of the launch or orbiting of this Galaxy
Satellite. Such comparable clause shall include a requirement to flow
the clause down to lower-tier contractors.
30.2 Notwithstanding any other provisions of this Contract, prior to the
time any Party, associated with the Galaxy X launch activities at the
Launch Site, shall enter the premises at the Launch Site, such Parties
shall be required to sign an Inter-Party Waiver of Liability
consistent with that between HCG and the Contractor as incorporated
herein under Paragraph 30.1 of this provision or other similar
agreement as may be required by the launch agency. Each Party shall
have the responsibility to assure that all the Parties associated with
the launch of Galaxy X Spacecraft (for which they have control or
privity of Contract with hereunder) have executed said Inter-Party
Waiver of Liability.
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ARTICLE 31. SPACECRAFT STORAGE
31.1 Buyer may, at its option, order Contractor to store, in accordance
with the provisions of Exhibit B Galaxy X Spacecraft Specification,
the deliverable Spacecraft (including separate storage of Batteries,
if needed) for a period of up to two (2) years from the date of their
delivery to Buyer. HCG shall provide written notice to the Contractor
not later than six (6) months prior to the scheduled delivery of said
Spacecraft. Contractor's price for providing storage shall be provided
to Buyer in accordance with Article 29, "Changes," (and such price
shall be deemed a "Change Proposal" for purposes of Article 29) within
30 days after receipt of Buyer's notice to store such Spacecraft and
Contractor shall provide storage facilities. If such storage
facilities are unavailable, Contractor and Buyer shall hold
discussions to determine a mutually agreed storage arrangement.
31.2 Six (6) months prior to a stored Spacecraft's scheduled launch date,
Buyer shall, by notice in writing, order the Contractor to remove said
Spacecraft from storage and ship it to a Launch Site designated by
Buyer. The cost for storage and additional transportation costs
exceeding that required to transport the Spacecraft to the FOB point
specified herein, shall be borne by Buyer. These will be in addition
to any charges which become the obligation of the Buyer per Article 17
herein entitled "Spacecraft Not Launched Within Six Months After
Acceptance."
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ARTICLE 32. DISPUTES
32.1 Disputes
32.1.1 In the event any dispute arises between the Contractor and the
Buyer relating to this Contract, either Party may give written
notice to the other of its objections and reasons therefore.
The Contractor and Buyer shall consult in an effort to reach a
mutual agreement to resolve such dispute. In the event a mutual
agreement cannot be reached within fifteen (15) days after
receipt of this notice, the respective positions of the Parties
shall be forwarded to Contractor and Buyer's respective
Executive Offices for discussions and they shall attempt to
reach a mutual agreement to resolve such dispute within another
fifteen (15) day period.
32.2 Arbitration of Disputes
32.2.1 Grounds for Arbitration and Notice Requirement. Any dispute,
----------------------------------------------
disagreement, controversy or claim arising out of or relating
to this Contract or the interpretation thereof or any
arrangements relating thereto, or the validity or
enforceability thereof, or contemplated therein or the breach,
termination or invalidity thereof which is not settled to the
mutual satisfaction of the Parties in accordance with Paragraph
32.1 above, then it shall be settled exclusively and finally by
binding arbitration, after written notice by either Party.
Arbitration of such disputes in accordance with this Article 32
shall be the Parties' exclusive remedy.
32.2.2 Administration and Rules. Arbitration proceedings in connection
------------------------
with the Agreement shall be administered by the American
Arbitration Association in accordance with its then in effect
Commercial Arbitration Rules, together with any relevant
supplemental rules including but not limited to its
Supplementary Procedures for Large, Complex Disputes, as
modified by the terms and conditions of the Agreement. With
respect to the
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selection of arbitrators, arbitration proceedings in connection
with this Agreement shall be conducted before a panel of three
(3) arbitrators. Within fifteen (15) days after the
commencement of arbitration, each Party shall select from a
list of qualified persons one person to serve as an arbitrator
on the panel, and within ten (10) days of their selection, the
two arbitrators shall select a third arbitrator who is listed
as an active member of the American Arbitration Association at
the time that arbitration proceedings commence. If the two
arbitrators selected by the respective Parties are unable or
fail to agree upon the third arbitrator in the allotted time,
then the third arbitrator shall be selected by the American
Arbitration Association.
32.2.3 Place of Arbitration. The place of arbitration shall be in Los
--------------------
Angeles, California, U.S.A.
32.2.4 Discovery. The arbitrators shall have the discretion to order
---------
a pre-hearing exchange of information by the Parties, including
without limitation, production of requested documents, exchange
of summaries of testimony of proposed witnesses, and
examination by deposition of the Parties.
32.2.5 Award and Judgment. The arbitrators shall have no authority to
------------------
award punitive damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and
conditions of this Agreement. Subject to the foregoing, the
Parties agree that the judgment of the arbitrators shall be
final and binding upon the Parties and that the judgment upon
the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
32.2.6 Confidentiality. No Party or arbitrator may disclose the
---------------
existence, content, or results of any arbitration proceedings
in connections with this Agreement without prior written
consent of all Parties to the arbitration proceeding.
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32.2.7 Fee and Expenses. All fees and expenses of any arbitration
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proceedings in connection with this Agreement shall be borne by
the losing Party. However, each Party shall bear the expense of
its own counsel, experts, witnesses, and preparation and
presentation of evidence.
32.2.8 Performance. Contractor and Seller shall continue with
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performance under this Agreement during any disagreement,
negotiation, or arbitration.
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ARTICLE 33. ASSIGNMENT
33.1 Neither Party shall assign, or transfer this Contract or any of its
rights, duties or obligations thereunder to any person or entity, in
whole or part without the prior written consent of the other Party
except that either Party may assign or transfer any of its rights,
duties or obligations under this Contract, either in whole or in part,
to its parent company, subsidiary or affiliate/1/ in which the
assigning Party has a controlling interest thereof. In addition,
notwithstanding anything in this Article 33 to the contrary, the
consent of Contractor shall not be required for, and Paragraph 33.2
shall not apply to, any assignment of this Contract from HCG to
Magellan International, Inc. (which currently contemplates changing
its name to PanAmSat Corporation), or an affiliate thereof, in
connection with the consummation of the transactions contemplated by
that certain Agreement and Plan of Reorganization dated as of
September 20, 1996 by and among Buyer, Magellan International, Inc.,
Pan Am Sat Corporation and certain affiliates of Buyer.
Neither Party shall unreasonably withhold consent to any assignment or
transfer providing that the requesting Party can demonstrate to the
other Party's satisfaction that:
(1) its successor or assignee possesses the financial resources to
fulfill the obligations of this Contract; and
(2) any such assignment or transfer shall not jeopardize any data
rights or competitive position, or violate laws related to export
or technology transfer, or otherwise increase the other Party's
risks or obligations.
If the requesting Party cannot so demonstrate, both Parties agree to
negotiate in good faith suitable modifications and new provisions to
this Contract which would mitigate the above risks and/or bring this
Contract into conformance with applicable laws.
/1/ Affiliate: An "affiliate" of, or a person "affiliated" with, a specified
---------
person, is a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, the person specified.
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33.2 The Parties agree that in the event that the ownership or control of
HCG or HSC is changed, the Parties reserve the right to negotiate in
good faith suitable modifications and new provisions to this Contract
which would mitigate any additional risks, financial or otherwise,
which may be brought about by such change in ownership or control.
33.3 This Contract shall be binding upon the Parties hereto and their
successors and permitted assigns.
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ARTICLE 34. LIMITATION OF LIABILITY
34.1 The Parties to this Contract expressly recognize that commercial space
ventures involve substantial risks and recognize the commercial need
to define, apportion and limit contractually such risks associated
with this commercial space venture. The payments and other remedies
expressly set forth in this Contract fully reflect the Parties'
negotiations, intentions and bargained-for allocation of such risks
associated with commercial space ventures.
34.2 In no event shall the Parties be liable for any direct, indirect,
incidental, special, contingent or consequential damages (including,
but not limited to, lost revenues or profits), except as expressly
provided for in this Agreement. This Article shall survive the
expiration or termination of this Contract for whatever cause.
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ARTICLE 35. EFFECTIVE DATE OF CONTRACT
The effective date of this Contract No. 96-HCG-001 shall be 1, September, 1995.
- --------- ----
IN WITNESS WHEREOF, the Parties hereto have executed this Contract No. 96-HCG-
001 to become effective upon the date specified in this Article 34, herein
entitled, "Effective Date of Contract."
▇▇▇▇▇▇ SPACE & COMMUNICATIONS COMPANY
-------------------------------------
SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
TITLE: Department Manager, Commerical/International Contracts
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DATE: 20 March 1997
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▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC.
----------------------------------
SIGNATURE: /s/ H.E. ▇▇▇▇▇▇▇▇▇
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NAME: H.E. ▇▇▇▇▇▇▇▇▇
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TITLE: Executive Vice President
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DATE: 20 March 1997
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