LAUNCH SERVICES AGREEMENT FOR THE LAUNCHING INTO GEOSTATIONARY TRANSFER ORBIT OF THE SPACEWAY-3 SATELLITE BY AN ARIANE 5 LAUNCH VEHICLE

Pages

RECITALS

ARTICLE

1   -

DEFINITIONS

ARTICLE

2   -

SUBJECT OF THE AGREEMENT

ARTICLE

3   -

CONTRACTUAL DOCUMENTS

ARTICLE

4   -

ARIANESPACE’S SERVICES

ARTICLE

5   -

CUSTOMER’S TECHNICAL COMMITMENTS

ARTICLE

6   -

LAUNCH SCHEDULE

ARTICLE

7   -

COORDINATION BETWEEN ARIANESPACE AND CUSTOMER

ARTICLE

8   -

REMUNERATION

ARTICLE

9   -

PRICE ESCALATION FORMULA

ARTICLE

10   -

PAYMENT FOR SERVICES

ARTICLE

11   -

LAUNCH POSTPONEMENTS

ARTICLE

12   -

RIGHT OF OWNERSHIP AND CUSTODY

ARTICLE

13   -

REPLACEMENT LAUNCH

ARTICLE

14   -

ALLOCATION OF POTENTIAL LIABILITIES AND RISKS

ARTICLE

15   -

INSURANCE

ARTICLE

16  -

OWNERSHIP OF DOCUMENTS AND WRITTEN INFORMATION

CONFIDENTIALITY/PUBLIC STATEMENTS

ARTICLE

17  -

PERMITS AND AUTHORIZATIONS - GROUND STATIONS

ARTICLE

18  -

TERMINATION BY CUSTOMER

ARTICLE

19  -

TERMINATION BY ARIANESPACE

ARTICLE

20  -

MISCELLANEOUS

ARTICLE

21  -

APPLICABLE LAW

ARTICLE

22  -

ARBITRATION

ARTICLE

23  -

EFFECTIVE DATE

ANNEX 1

Part 1

  LAUNCH SPECIFICATIONS

Part 2

  ARIANESPACE TECHNICAL COMMITMENTS

Part 3

  CUSTOMER’S TECHNICAL COMMITMENTS

Part 4

  DOCUMENTATION AND REVIEWS

Part 5

  GENERAL RANGE SUPPORT (GRS) AND OPTIONAL SERVICES

ANNEX 2

ESA - ARIANESPACE CONVENTION (EXTRACT)

WHEREAS    

CUSTOMER has approached ARIANESPACE with a view to launching the SPACEWAY-3 Satellite using an ARIANE Launch Vehicle, and

WHEREAS    

ARIANESPACE has proposed to CUSTOMER either a Dedicated Launch or a Double Launch, and

WHEREAS    

CUSTOMER has selected a Double Launch, being aware of the particular constraints involved in such a Launch, and

WHEREAS    

CUSTOMER and ARIANESPACE, aware of the constraints and risks involved in any Launch operation and of the complex nature of the technologies involved, have reached an agreement in accordance with the terms and conditions set forth herein,

a)

any individual or legal entity governed by private or public law that has directed ARIANESPACE to proceed with the Launch or has any interest in the Launch, including without limitation, a legal interest in the Launch Vehicle shall be deemed to be an Associate of ARIANESPACE

b)

any individual or legal entity governed by private or public law that has directed CUSTOMER to proceed with the Launch, or has any interest in the Satellite to be launched, including without limitation, insurers, any person or entity to whom CUSTOMER has sold or leased , directly or indirectly, or otherwise agreed to provide any portion of the Satellite or Satellite service shall be deemed to be an Associate of CUSTOMER;

c)

any individual or legal entity governed by private or public law, that has directed the Third Party Customer(s) of ARIANESPACE to proceed with the launch, or has any interest in the satellite(s) of the Third Party Customer(s) to be launched, including without limitation, insurers, any person or entity to whom the Third Party Customer(s) has sold or leased , directly or indirectly, or otherwise agreed to provide any portion of the satellite or satellite service shall be deemed to be an Associate of Third Party Customer(s) of ARIANESPACE.

a)

the performance of the various systems of the Launch Vehicle; and/or the environmental conditions to which the Satellite was subjected during the period from the instant when the Launch occurred until the instant when the activation of either the propulsion and/or orientation systems of the Satellite should have occurred; and/or

b)

the behaviour of the satellite of a Third Party Customer(s) of ARIANESPACE from the instant when the Launch occurred until the earlier of the following :

-

the instant when the propulsion and/or orientation systems of the satellite of the Third Party Customer(s) of ARIANESPACE are activated, or

-

the instant when the activation of either the propulsion and/or orientation systems of the Satellite should have occurred.

a)

that the Satellite is destroyed or lost during the period extending from the instant when the Launch occurred and the instant when the Satellite is separated from the Launch Vehicle, or if such Satellite cannot be separated from the Launch Vehicle; or

b)

the occurrence due to a Deviation of a reduction, expressed as a percentage, of more than the Launch Failure Factor (“LFF”) of the operational capability of the Satellite for CUSTOMER’s intended communication purposes, using reasonable business judgment.

3.1

This Agreement consists of the following documents, which are contractually binding between the Parties:

1)

Terms and Conditions

2)

Launch Specifications (Part 1 of Annex 1)

3)

ARIANESPACE Technical Commitments (Part 2 of Annex 1)

4)

CUSTOMER’s Technical Commitments (Part 3 of Annex 1)

5)

Documentation and reviews (Part 4 of Annex 1)

6)

General Range Support (GRS) and Optional Services (Part 5 of Annex 1)

7)

ESA-ARIANESPACE Convention (Extract) (Annex 2)

3.2

In the event of any conflict or inconsistency among the provisions of the various parts of this Agreement, including the Annexes, such conflict or inconsistency shall be resolved by giving precedence to the Terms and Conditions, without consideration of the Annexes, then to the Annexes without order of preference, and then to any documents referred to and thereby incorporated into the said Annexes. All of the Agreement documents shall be read so as to be consistent to the extent practicable.

4.1

ARIANESPACE shall perform the Services under this Agreement including:

4.1.1

Launch Services.

4.1.2

Associated Services ordered by CUSTOMER as set forth in this Agreement, and as defined in Paragraph 1 (“General Range Support”) and Paragraph 2 (“Options Ordered by the CUSTOMER”) of Part 5 of Annex 1 to this Agreement, in accordance with the conditions as specified therein.

4.1.3

Subject to any additional orders of CUSTOMER, one or more of the services as set forth in (i) Paragraph 3 (“Additional Options Available to the CUSTOMER”) of Part 5 of Annex 1 to this Agreement, (ii) the latest issue of the User’s Manual (M.U.A.) in effect on the date of the corresponding order of CUSTOMER, in accordance with the then applicable conditions and any other services ordered by CUSTOMER and accepted by ARIANESPACE.

4.2

Launch Services, except for Postlaunch Services, shall be deemed to be completed by ARIANESPACE when the Launch has taken place. In the event that, for any reason whatsoever, a Launch Abort occurs, ARIANESPACE shall postpone the Launch in accordance with the conditions set forth in Article 11 of this Agreement.

4.3

Reflight

4.3.1

CUSTOMER shall have the right to exercise the Reflight Option by written request received by ARIANESPACE within SIXTY (60) days following the effective date of this Agreement.

4.3.2

In the event CUSTOMER has elected the Reflight Option and the Launch Mission results in a:

4.3.2.1

Launch Failure, ARIANESPACE shall perform a Reflight, in accordance with the provisions of this Agreement, provided that no further payment by CUSTOMER to ARIANESPACE shall be due for the provision of (i) Launch Services for the Launch of a replacement Satellite on condition that the maximum mass of such Satellite is equal to the mass of the initial Satellite, and (ii) such Associated Services as are retained by CUSTOMER as of the date of execution of this Agreement, except as provided for in Paragraph 8.2 of Article 8 of this Agreement, in case of postponement.

4.3.2.2

Partial Failure, ARIANESPACE shall pay to CUSTOMER an amount as obtained by multiplying the Guarantee Amount by the Loss Quantum. The resulting amount will be subject to a deductible equal to PFF of the Guarantee Amount provided for the launching, in accordance with the following formula :

Notwithstanding the foregoing, if the insurance policy taken out by CUSTOMER (i) provides for a deductible higher or lower than PFF, such deductible as provided for in the said insurance policy shall apply, or (ii) does not provide for a deductible, no deductible shall apply.

4.3.3

Any amount due by ARIANESPACE to CUSTOMER under Sub-paragraph 4.3.2 above shall be paid within the FORTY-FIVE (45) day period following the date when the Parties have agreed on the occurrence of the Launch Failure or the Partial Failure and the corresponding Loss Quantum, provided CUSTOMER has paid all amounts due and payable by it under this Agreement. ARIANESPACE shall pay the CUSTOMER interest on any late or delayed payment of the foregoing sum at the Base Rate from and including the date due to but excluding the date made. The computation of interest for late payments shall be based on a year of 360 days.

4.3.4

The implementation of Sub-paragraph 4.3.2 above shall not imply any transfer of title to the Satellite to ARIANESPACE. In case of Launch Failure or Partial Failure, the rights of ARIANESPACE shall be the same of those of any entity(ies) who cover risks related to the launch of the Satellite. Specially and not limitatively, in circumstances where salvage can be performed, ARIANESPACE will be entitled to a share in any salvage value remaining in any portion of the Satellite for which a Reflight has been performed or a cash payment has been due and paid by ARIANESPACE to CUSTOMER and the Parties will negotiate the disposition of the Satellite if, in connection with a Launch Failure, transfer of title has been requested.

4.3.5

In the event that, after application of Sub-paragraph 4.3.2 above due to a Launch Failure, the Satellite is placed into commercial operation and/or is sold, leased or otherwise transferred, ARIANESPACE shall be entitled to a share of any resulting revenues and/or payments, as shall be negotiated and agreed upon promptly, taking into account the specific details and circumstances of such commercial operation, but in no case shall any shared amount exceed the Guarantee Amount.

4.3.6

There shall not be any cover for Launch Failure or Partial Failure and consequently the provisions of Paragraph 4.3 above shall not apply, in any of the following cases :

4.3.6.1

If CUSTOMER does not notify in writing ARIANESPACE of any event that would entitle CUSTOMER to any right under Sub-paragraph 4.3.2 above before the first to occur of any of the THREE (3) following events;

(i) the day the Satellite is put into commercial operation,

(ii) the SIXTIETH (60^th) following the date of station acquisition of the Satellite,

(iii) the ONE HUNDRETH (100^th) day at zero hour following the date of the Launch.

Notwithstanding the foregoing, an extension of the periods hereabove can be obtained upon request from CUSTOMER if both of the following conditions occur :

(a)

the launching does not conform to the specifications of the D.C.I. and the Satellite reached its final positioning such that it cannot be determined that a Launch Failure or Partial Failure has occurred and;

(b)

CUSTOMER’s request for extension is received before the first of the THREE (3) events specified above.

In no event shall such extension extend beyond the ONE HUNDRED EIGHTIETH (180^th) day following the date of the Launch.

and/or

4.3.6.2

if the Launch Failure or the Partial Failure is caused by, or results from one or more of the following events:

A

war, hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack by (a) any government or sovereign power (de jure or de facto), or (b) any authority maintaining or using a military, naval or air force, or (c) a military, naval or air force, or (d) any agent of any such government, power, authority or force;

B

any anti-satellite device, or device employing atomic or nuclear fission and/or fusion, or device employing laser or directed energy beams;

C

insurrection, strikes, riots, civil commotion, rebellion, revolution, civil war, usurpation or action taken by a government authority in hindering, combating or defending against such an occurrence whether there be a declaration of war or not;

D

confiscation by order of any government or governmental authority or agent (whether secret or otherwise), or public authority;

E

nuclear reaction, nuclear radiation, or radioactive contamination of any nature, whether such loss or damage be direct or indirect, except for radiation naturally occurring in the space environment;

F

willful or intentional acts of CUSTOMER designed to cause loss or failure of the Satellite, provided that this exclusion shall not apply to actions of any employees of the CUSTOMER while acting outside of their authorized responsibilities, or without the knowledge of the CUSTOMER;

G

electromagnetic or radio frequency interference, except for physical damage to the Satellite resulting from such interference and except for interference naturally occurring in the space environment;

H

any act of one or more persons, whether or not agents of a sovereign power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional; or

I

any unlawful seizure or wrongful exercise of control of the Satellite made by any person or persons acting for political or terrorist purposes whether the loss or damage resulting therefrom is accidental or intentional.

5.1

CUSTOMER, subject to applicable laws and the necessary U.S. Export Authorization, shall fulfill or cause an Associate to fulfill, the Technical Commitments set forth in Parts 1 and 3 of Annex 1 to this Agreement including, without limitation, delivery of the Satellite to the Launch Base within the time limits consistent with the launch schedule set forth herein.

5.2

CUSTOMER shall promptly notify ARIANESPACE in writing of any event that at the time is reasonably likely to cause a delay in the launch schedule.

6.1

The Launch of the Satellite shall take place during the following Launch Period:

6.2

The Launch of the Satellite shall take place during the following Launch Slot:

6.3

ARIANESPACE hereby represents, warrants and confirms to CUSTOMER, as of the effective date of the Agreement, and to the best its knowledge and information, that the Launch Vehicle and the Third Party Customer satellite will be available and transported to the Launch Base on a schedule consistent with the timely performance of the Launch within the first week of the initial Launch Slot indicated in Paragraph 6.2 above.

6.4

Based on a proposal made by ARIANESPACE, by mutual agreement of the Parties, the Launch Day within the Launch Slot shall be determined, no later than THREE (3) months prior to the first day of the Launch Slot. Without prejudice to the foregoing, it is the objective of the Parties to Launch the Satellite on or before [***].

6.5

Based on a proposal made by ARIANESPACE, by mutual agreement of the Parties, the Launch Window set forth in Sub-paragraph 2.3 of Part 1 to Annex 1 to this Agreement shall be determined no later than the Final Mission Analysis Review.

6.6

In the event that, for any reason whatsoever, the Parties fail to agree upon the Launch Slot within the applicable Launch Period, the Launch Day, or the Launch Window, ARIANESPACE shall determine said Launch Slot, Launch Day, or Launch Window taking into account the available Launch Opportunity(ies), and the requirements and respective interests of CUSTOMER and any of the Third Party Customer(s) of ARIANESPACE.

7.1

CUSTOMER and ARIANESPACE each designate [***] and [***], respectively, as their program director (hereinafter “Program Director”) for purposes of coordinating the performance of each Parties’ obligations under this Agreement.

7.2

The Program Director shall supervise and coordinate the performance of the Services and the Technical Commitments of the respective Parties within the Launch schedule set forth herein.

7.3

Each Program Director shall have sufficient powers to be able to settle any technical issues that may arise during the performance of this Agreement, as well as any day-to-day management issues.

7.4

A Party may replace its Program Director by prior written notice to the other Party, signed by an authorized official, indicating the effective date of designation of the new Program Director.

8.1

The remuneration of ARIANESPACE for the provision of Launch Services for the Launch of the Satellite of a mass of 6100 kg (without adaptor) is a firm and fixed price, as follows:

8.1.1

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$ 115,000,000) (the “Firm Fixed Price”).

8.1.2

The amount mentioned in the above Sub-paragraph 8.1.1 shall be increased by the amount obtained by multiplying the price set forth in the above Sub-paragraph 8.1.1 by [***] ([***]%), if CUSTOMER exercises the Reflight Option.

8.1.3

Notwithstanding anything to the contrary, and provided that no postponement of the Launch Period, Launch Slot or Launch Day shall have been requested by CUSTOMER, should ARIANESPACE not perform the Launch on or prior to [***], for any reason whatsoever, CUSTOMER shall be entitled to a refund of the Firm Fixed Price computed as follows: [***].

8.1.4

Notwithstanding Subparagraph 8.1.3 above, no discount shall be payable by ARIANESPACE to CUSTOMER, should ARIANESPACE not be able to meet the [***] Launch Date for any of the following reasons:

(a)

Any damage caused by CUSTOMER and/or its Associates to the physical property of ARIANESPACE and/or the physical property its Associates, and/or

(ii)

any bodily injury (including death) caused by CUSTOMER and/or its Associates to ARIANESPACE and/or its Associates.

8.2

The firm fixed price, if any, for Associated Services assumes, that the Launch will be performed by [***]. Should the Launch Period or Launch Slot assigned to CUSTOMER under Article 11 of this Agreement extend beyond [***], the then catalogue price for the relevant year will apply to such Associated Services that will not have been performed by the date of request for any postponement, and that would have to be performed again as a consequence of any Launch postponement. The same shall apply mutatis mutandis for a Reflight.

8.3

All prices, expenses, and charges set forth in this Agreement shall be inclusive of all taxes and other duties of any French tax authority.

10.1

Payment of the remuneration under Paragraph 8.1 of Article 8 of this Agreement shall be made in accordance with the following payment schedule :

Percentage of the portion of the Launch

Services price referred to in Sub-

paragraph 8.1.1 of Article 8 of this

Agreement

[***]

[***]

[***]

[***]%

[***]%

[***]%

10.1.2

The price of the Reflight Option shall be paid in accordance with the following payment schedule:

Percentage of the price of the Reflight

Option referred to in Sub-paragraph

8.1.2 of Article 8 of this Agreement

[***]

[***]%

10.2

  Payment for Associated Services

10.2.1

Payment for Associated Services ordered by CUSTOMER under Part 5 of Annex 1 to this Agreement, for which a firm fixed price has been established, shall be due as of the date set forth in said Paragraph.

10.2.2

Payment for Associated Services ordered by CUSTOMER under Part 5 of Annex 1 to this Agreement, for which no total firm fixed price can be determined in advance, shall be due on the date on which CUSTOMER terminates use of the relevant Associated Services.

10.3

Terms and Conditions of Payment/ARIANESPACE’s Invoices

10.3.1

Where this Agreement determines a precise payment date, payment has to be made at such date or within THIRTY (30) days from receipt of ARIANESPACE’s corresponding invoice, whichever is later, except for the first payment provided in Sub-paragraph 10.1.1 of Article 10 of this Agreement, for which invoice will be presented on the date of execution of this Agreement and paid within TEN (10) days thereof.

10.3.2

Where the Agreement does not determine a precise payment date, payment has to be made at the date when payment becomes due or within THIRTY (30) days of receipt of ARIANESPACE corresponding invoice, whichever is later.

10.3.3

ARIANESPACE invoices shall be drawn up in THREE (3) copies (one original and two copies) and sent to the same address as specified herein for notices to

CUSTOMER under Section 20.2, or to such other address as CUSTOMER may notify ARIANESPACE in writing.

The method for calculating the amount of each invoice shall be shown clearly.

10.3.4

Payments shall be made to the account(s) designated on the relevant invoice by telegraphic bank transfer, without charge to ARIANESPACE, with telex notice from the issuing bank to the receiving bank. ARIANESPACE shall be responsible for telex expenses. The notice shall clearly state the value date to be applied and the bank through which the funds will be made available to the receiving bank or its correspondent.

Payment shall be effective as of the date on which the amount of the ARIANESPACE invoice is credited for value to the designated account(s).

10.3.5

CUSTOMER’s payment(s) shall be in the amount(s) invoiced by ARIANESPACE, and shall be made net, free and clear of any and all taxes, duties, or withholdings that may be imposed in the Country of CUSTOMER and the Country from which they are paid so that ARIANESPACE receives each such payment in its entirety as if no such tax, duty, or withholding had been made.

10.4

Late Payment

10.5

Waiver of Deferral, Withholding or Set-off

11.1

Each postponement of the Launch Period, the Launch Slot, the Launch Day or the Launch Time, for whatever reason, shall, for each particular Launch under this Agreement, be governed solely by the terms and conditions provided in this Article 11. The Parties hereto expressly waive, renounce, and exclude any and all rights and remedies that may arise at law or in equity with respect to postponements that are not stated in this Article 11 or elsewhere in this Agreement.

11.2

Postponements requested by CUSTOMER

11.2.1

CUSTOMER shall have the right for any reason whatsoever to postpone the Launch Period and, once determined, the Launch Slot or the Launch Day. The CUSTOMER’s written notice for postponement shall indicate the new requested (i) Launch Period, or (ii) Launch Slot, or (ii) Launch Day, as the case may be. For the avoidance of any doubt, CUSTOMER’s existing Launch Period, Launch Slot or Launch Day (as applicable) shall not be relinquished until CUSTOMER has agreed to the new Launch Period, Launch Slot or Launch Day (as applicable) pursuant to the provisions of this Paragraph 11.2.

11.2.1.1

If the CUSTOMER’s written request relates to a Launch Period or a Launch Slot postponement, within TWO (2) weeks of receipt of such request, ARIANESPACE shall inform CUSTOMER whether a Launch Opportunity exists within the Launch Period, or within the Launch Slot requested, or will propose a new Launch Period or Launch Slot. CUSTOMER shall have THIRTY (30) days following receipt of ARIANESPACE’s proposal to consent thereto in writing.

11.2.1.2

If the CUSTOMER’s written request relates to a Launch Day postponement, the choice of a new Launch Day shall be made by mutual agreement of the Parties, taking into account the technical needs and interests of CUSTOMER and any Third Party Customer(s) of ARIANESPACE, the time necessary for the revalidation of the launch assembly complex consisting of the ARIANE Launch Vehicle, the Launch Base (ELA), and the payload preparation assembly (EPCU), and meteorological forecasts.

11.2.1.3

Any postponements by CUSTOMER of the Launch Time within the Launch Window may only be requested during the countdown period. In the event that CUSTOMER has requested such postponement and technical reasons, including, without limitation, those relating to any Third Party Customer(s) of ARIANESPACE, or meteorological reasons prevent ARIANESPACE from performing the Launch in the Launch Window opening during the Launch Day, the postponement shall be considered to be a postponement of the Launch Day.

11.2.1.4

In the event that the aggregate duration of all postponements requested by CUSTOMER for the Launch exceeds [***] ([***]) months, the Launch Services price shall be renegotiated by the Parties on a fair and reasonable basis, taking into consideration current market conditions. The Parties acknowledge and agree that for a Launch taking place within the next [***] ([***]) month period, any increase in the Launch Services price shall not exceed [***]% of the Firm Fixed Price.

11.3

Launch postponement requested by ARIANESPACE

11.3.1

ARIANESPACE shall have the right to postpone a Launch, for the following reasons:

11.3.1.1

Postponement of Launch Period and of Launch Slot and postponement of the Launch Day within the Launch Slot and/or Launch Time within the Launch Window.

a)

ARIANESPACE or its Associates encounter adverse technical problems that prevent the Launch from taking place under satisfactory conditions of safety or reliability.

b)

ARIANESPACE cannot perform the Launch as a Double Launch.

c)

In the event that the Launch does not occur on or prior to [***], and ARIANESPACE is requested to perform replacement launch(es), or to launch scientific satellite(s) whose mission(s) may be degraded in the event of postponement, where such launch(es) occur after [***].

d)

ARIANESPACE postpones the launch(es) due to postponement(s) by ARIANESPACE of satellite(s) having an earlier Launch Period or Launch Slot than CUSTOMER’s Satellite(s).

11.3.2

In the case of a postponement pursuant to Sub paragraphs 11.3.1.1(a), (c) and/or (d), the Parties shall determine by mutual agreement a new Launch Period and/or a new Launch Slot as near as possible to the postponed one in accordance with and maintaining the launch rank of Customer’s Satellite;

The Launch Day and the Launch Window within the new Launch Slot shall be determined by ARIANESPACE according to the technical constraints of ARIANESPACE, CUSTOMER and the Third Party Customer(s) of ARIANESPACE, and their respective interests.

11.3.3

In the case of a postponement pursuant to Sub paragraph 11.3.1.1(b), the Parties shall determine by mutual agreement a new Launch Period and/or a new Launch Slot as near as possible to the postponed one.

The Launch Day and the Launch Window within the new Launch Slot shall be determined by ARIANESPACE according to the technical constraints of ARIANESPACE, CUSTOMER and the Third Party Customer(s) of ARIANESPACE, and their respective interests.

11.3.4

Any postponement by ARIANESPACE of the Launch Period, Launch Slot, Launch Day, Launch Window, or Launch Time due to CUSTOMER’s non-fulfillment of its obligations under this Agreement making the Launch impossible within the Launch Period, Launch Slot, or during Launch Window of the Launch Day, or at the Launch Time shall be considered to be requested by CUSTOMER in accordance with Paragraph 11.2 above as of the date of ARIANESPACE’s decision to postpone the Launch.

11.4

Any Launch postponement requested by ARIANESPACE pursuant to Paragraph 11.3 of this Article 11 shall only occur as a last resort and following the reasonable commercial efforts of ARIANESPACE to avoid and mitigate such postponement as may be necessary for the reasons set forth in Sub-paragraph 11.3.1.1 of this Article 11.

11.5

Except as provided in Paragraphs 10.1.1 and 10.1.2, any Launch postponement provided for in this Article 11 shall not modify the progress payment schedule set forth in Paragraph 10.1.

12.1

The obligations of ARIANESPACE under this Agreement are strictly limited to the Services, and CUSTOMER acknowledges and agrees that at no time shall it have any right of ownership of, any other right in, or title to, the property that ARIANESPACE shall use in connection with the Launch, or shall place at CUSTOMER’s disposal for the purpose of this Agreement, including, without limitation, the Launch Vehicle and the Launch Base of ARIANESPACE. Said property shall at all times be considered to be the sole property of ARIANESPACE.

12.2

ARIANESPACE acknowledges and agrees that at no time shall it have any right of ownership, or any other right in, or title to, the property that CUSTOMER shall use for the Launch and the interface test(s), including, without limitation, the Satellite and all equipment, devices and software to be provided by CUSTOMER on the Launch Base in order to prepare the Satellite for Launch. Said property shall at all times be considered to be the sole property of CUSTOMER.

12.3

At all times during the performance by the Parties of this Agreement, each Party shall be deemed to have full custody and possession of its own property.

13.1

Terms

13.1.1 

CUSTOMER is entitled to request a Replacement Launch from ARIANESPACE in the event that, following the Launch, either the Launch Mission or the Satellite Mission has not been accomplished for any reason whatsoever. Replacement Launch Services are subject to the conditions set forth in this Article 13. Any and all other rights and remedies of CUSTOMER are excluded whatever their nature.

13.1.2 

CUSTOMER shall be entitled to have a Launch Slot for a Replacement Launch allocated to it by ARIANESPACE within TEN (10) months following the month ARIANESPACE has received a written request for Replacement Launch. Should CUSTOMER request a Launch Period beyond such TEN (10) month period, ARIANESPACE shall allocate the nearest Launch Opportunity, provided however that in no way shall the Launch Period requested by CUSTOMER extend beyond the THIRTY SIX (36) month period following the date of request for a Replacement Launch.

13.1.3 

The written request for a Replacement Launch shall be received by ARIANESPACE no later than the last day of the second month following the month in which the cause of the failure of either the Launch Mission or the Satellite Mission has been established, but in no event later than, in the case of a Satellite Mission failure, TWENTY SEVEN (27) months following the date of Launch.

13.1.4 

ARIANESPACE shall inform CUSTOMER, within the month following receipt of CUSTOMER’s request for a Replacement Launch, whether or not a Launch Opportunity exists within the requested Launch Period and, in any event, shall allocate a Launch Slot to CUSTOMER, the first day of which shall be before the expiration of the TEN (10) calendar month period specified in Sub-paragraph 13.1.2 of Article 13 of this Agreement if the Launch Period requested by CUSTOMER is within that TEN (10) month period; otherwise ARIANESPACE shall allocate to CUSTOMER the nearest existing Launch Opportunity. The date allocated shall not begin earlier than the first day of the Launch Period requested by CUSTOMER.

13.1.5 

The replacement Satellite shall be substantially in accordance with the interface control document (DCI) governing CUSTOMER’s Satellite.

13.2

General Conditions

14.1

Allocation of Risks for damage caused by one Party and/or its Associates to the Other Party and/or its Associates:

14.1.1 

Due to the particular nature of the Services, the Parties agree that any liability of ARIANESPACE or of CUSTOMER arising from the defective, late, or non-performance of ARIANESPACE’s Services and CUSTOMER’s technical obligations under this Agreement is, in all circumstances, including termination of this Agreement or a Launch under this Agreement, strictly limited to the liability expressly provided for in this Agreement. Except as provided in this Agreement, the Parties hereto expressly waive, renounce, and exclude any and all rights and remedies that may arise at law or in equity with respect to the Services.

14.1.2 

Each Party shall bear any and all loss of or damage to physical property and any bodily injury (including death) and all consequences, whether direct or indirect, of such loss, damage or bodily injury (including death), and/or of a Launch Mission failure and/or of a Satellite Mission failure, which it or its Associates may sustain, directly or indirectly, arising out of or relating to this Agreement or the performance of this Agreement. Each Party irrevocably agrees to a no-fault, no-subrogation, inter-party waiver of liability, and waives the right to make any claims or to initiate any proceedings whether judicial, arbitral, or administrative on account of any such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure against the other Party or that other Party’s Associates arising out of or relating to this Agreement for any reason whatsoever.

For the avoidance of doubt, the provisions above exclude, without limitation, any liability of ARIANESPACE or its Associates for any loss or damages to CUSTOMER or its Associates, resulting from the intentional destruction of the Launch Vehicle and the Satellite in furtherance of launch range safety measures.

Each Party agrees to bear the financial and any other consequences of such loss, damage or bodily injury (including death) and/or of a Launch Mission failure and/or a Satellite Mission failure which it or its Associates may sustain, without recourse to the other Party or the other Party’s Associates.

14.1.3 

In the event that one or more Associates of a Party shall proceed against the other Party and/or that Party’s Associates as a result of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, the first Party shall indemnify, hold harmless, dispose of any claim, and defend, when not contrary to the governing rules of procedure, the other Party and/or its Associates, as the case may be, from any liability, cost or expense, including attorneys’ fees, on account of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, and shall pay all costs and expenses and satisfy all judgments and awards which may imposed on or rendered against that other Party and or its Associates.

14.2

Loss or Damage or Bodily Injury Caused or Sustained by any Third Party Customer(s) of ARIANESPACE or its (their) Associates

14.2.1 

Each Party shall bear any and all loss of or damage to physical property and any bodily injury (including death) and all consequences, whether direct or indirect, of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, which it or its Associates may sustain, that is caused, in any way, by (a) Third Party Customer(s) of ARIANESPACE or its (their) Associates, directly or indirectly, arising out of or relating to the performance of this Agreement and/or the launch services agreement signed by ARIANESPACE with such Third Party Customer(s) of ARIANESPACE.

14.2.2 

CUSTOMER hereby irrevocably agrees to a no-fault, no-subrogation, inter-party waiver of liability and waives the right to make any claims or to initiate any proceedings whether judicial, arbitral, administrative or otherwise on account of any such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure against Third Party Customer(s) of ARIANESPACE, and/or ARIANESPACE and/or their respective Associates for any reason whatsoever.

CUSTOMER agrees to bear the financial and any other consequences of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure caused in any way by any Third Party Customer(s) of ARIANESPACE or its (their) Associates without recourse against the Third Party Customer(s) of ARIANESPACE and/or ARIANESPACE and/or their respective Associates.

In the event that one or more of CUSTOMER’s Associate(s) proceed against the Third Party Customer(s) of ARIANESPACE and/or ARIANESPACE and/or their respective Associates as a result of any loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure caused in any way to it by such Third Party Customer(s) of ARIANESPACE or its (their) Associates, CUSTOMER shall indemnify, hold harmless, dispose of any claim and defend, when not contrary to the governing rules of procedure, such Third Party Customer(s) of ARIANESPACE, and/or ARIANESPACE and/or their respective Associates from any liability, cost or expense, including attorneys’ fees, on account of such loss, damage or bodily injury (including death) and/or Launch Mission failure and/or Satellite Mission failure, and shall pay all costs and expenses and satisfy all judgments and awards which may be imposed on or rendered against the Third Party Customer(s) of ARIANESPACE and/or ARIANESPACE, and/or their respective Associates.

14.2.3 

In the event that any Third Party Customer(s) of ARIANESPACE and/or its (their) Associates proceed against CUSTOMER and/or its Associates as a result of any loss, damage or bodily injury (including death) and/or launch mission failure and/or satellite mission failure caused in any way by CUSTOMER and/or its (their) Associates, directly or indirectly, arising out of or relating to the performance of this Agreement and/or the agreement signed by ARIANESPACE with such Third Party Customer(s) of ARIANESPACE, ARIANESPACE shall indemnify, hold harmless, dispose of any claim and defend, when not contrary to the governing rules of procedure, CUSTOMER and/or its Associates from any liability, cost or expense, including attorney’s fees, on account of such loss, damage or bodily injury (including death), and/or Launch Mission failure and/or Satellite Mission failure, and shall pay all costs and expenses and

14.3

Indemnification

14.4

Liability for Damages Suffered by Third Parties

14.4.1

Each Party shall be solely and entirely liable for all loss, damage or bodily injury (including death) sustained, whether directly or indirectly, by any Third Party, which is caused by such Party or its Associates arising out of or relating to the performance by such Party of this Agreement.

14.4.2

In the event of any proceeding, whether judicial, arbitral, administrative or otherwise, by a Third Party against one of the Parties or its Associates on account of any loss, damage or bodily injury (including death), caused by the other Party, its physical property or its Associates or its (their) physical property, whether directly or indirectly the latter Party shall indemnify and hold harmless the former Party and/or the former Party’s Associates, as the case may be, and shall advance any funds necessary to defend their interests.

14.5

Infringement of Industrial Property Rights of Third Parties

14.5.1

ARIANESPACE shall indemnify and hold CUSTOMER harmless with respect to any cost, and expense resulting from an infringement or claim of infringement of patent rights or any other industrial or intellectual property rights of any third party which may arise from CUSTOMER’s use of ARIANESPACE’s Services, including, without limitation, the use of any and all products, processes, articles of manufacture, supporting equipment, facilities, and services by ARIANESPACE in connection with said Services; provided however, that this indemnification shall not apply to an infringement of rights as set forth above that have been mainly caused by an infringement of a right of a third party for which CUSTOMER is liable pursuant to Sub-paragraph 14.5.2 of Article 14 of this Agreement.

14.5.2

CUSTOMER shall indemnify and hold ARIANESPACE harmless with respect to any cost, and expense resulting from an infringement or claim of infringement of the patent rights or any other industrial or intellectual property rights of any third party arising out of or relating to CUSTOMER with respect to the design or manufacture of the Satellite, or ARIANESPACE’s compliance with specifications furnished by CUSTOMER with respect to the Launch Mission and the Satellite Mission.

14.5.3

The rights to indemnification provided hereunder shall be subject to the following conditions :

14.5.3.1  

The Party seeking indemnification shall promptly advise the other Party of the filing of any suit, or of any written or oral claim against it, alleging

an infringement of any third party’s rights, which it may receive relating to this Agreement, and upon the receipt thereof, shall provide the Party required to indemnify, at such Party’s request and expense, with copies of all relevant documentation

14.5.3.2  

The Party seeking indemnification shall not make any admission, nor shall it reach a compromise or settlement, without the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed.

14.5.3.3  

The Party required to indemnify, defend and hold the other harmless shall assist in and shall have the right to assume, when not contrary to the governing rules of procedure, the defense of any claim or suit or settlement thereof, and shall pay all reasonable litigation and administrative costs and expenses, including legal counsel fees and expenses, incurred in connection with the defense of any such suit, shall satisfy any judgments rendered by a court of competent jurisdiction in such suits, and shall make all settlement payments.

14.5.3.4.  

The Party seeking indemnification may participate in any defense at its own expense, using counsel reasonably acceptable to the Party required to indemnify, provided that there is no conflict of interest and that such participation does not otherwise adversely affect the conduct of the proceedings.

14.5.4

In the event that ARIANESPACE, with respect to the Launch, and CUSTOMER, with respect to the Satellite, shall be the subject of the same court action or the same proceedings based on alleged infringements of patent rights or any other industrial or intellectual property rights of a third party pursuant to both Sub-paragraphs 14.5.1. and 14.5.2. hereof, ARIANESPACE and CUSTOMER shall jointly assume the defense and shall bear all damages, costs and expenses pro rata according to their respective liability. In the event of any problems in the implementing the pro rata allocation of the amounts referred to in the immediately preceding sentence, the Parties shall undertake in good faith to resolve such problems.

14.5.5

Neither Party’s execution or performance of this Agreement grants any rights to or under any of either Party’s respective patents, proprietary information, and/or data, to the other Party or to any third party, unless such grant is expressly recited in a separate written document duly executed by or on behalf of the granting Party.

15.1

ARIANESPACE shall, for any particular Launch under this Agreement, take out an insurance policy at no cost to CUSTOMER, to protect itself and CUSTOMER against liability for property loss or damage and bodily injury that Third Parties may sustain and that is caused by the Launch Vehicle, and/or the Satellite, and/or the satellite of any Third Party Customer(s) of ARIANESPACE, and/or their components or any part thereof. Such insurance policy shall name as additional insureds :

1)

The Government of France.

2)

The Centre National d’Etudes Spatiales “C.N.E.S.” and any launching state as such term is defined in the Convention on International Liability for Damage Caused by Space Objects of 1972.

3)

The auxiliaries of any kind, whom ARIANESPACE and/or the C.N.E.S. would call for in view of the preparation and the execution of the launching operations.

4)

The European Space Agency “E.S.A.” but only in its capacity as owner of certain facility and/or outfits located at the Centre Spatial Guyanais in Kourou and made available to ARIANESPACE and/or to the C.N.E.S. for the purpose of the preparation and the execution of the launches.

5)

The firms, who have participated in the design and/or in the execution and/or who have provided the components of the Launch Vehicle, of its support equipment including propellants and other products either liquid or gaseous necessary for the functioning of the said Launch Vehicle, their contractors, sub-contractors and suppliers.

6)

CUSTOMER, its contractors and subcontractors and each of their respective officers, directors, legal representatives, managing director, employees, agents and interim staff, and Third Party Customer(s) of ARIANESPACE on whose behalf ARIANESPACE executes the launch services as well as their co-contractors and sub-contractors.

7)

Provided they act within the scope of their duties, the officers and directors, legal representatives, managing director, employees, agents and interim staff employed by ARIANESPACE or by any of additional insured mentioned in the preceding sub-paragraphs from 1 to 6 (included)

15.2

The insurance referred to in Paragraph 15.1 shall come into effect as of the day of the Launch concerned, and shall be maintained for a period of the lesser of TWELVE (12) months or so long as all or any part of the Launch Vehicle, and/or the Satellite, and/or the satellite of any Third Party Customer(s) of ARIANESPACE, and/or their components remain in orbit.

15.3

The insurance policy shall be in the amount of SIXTY MILLION NINE HUNDRED AND EIGHTY THOUSAND EUROS (€ 60 980 000). ARIANESPACE shall settle all liabilities, and shall indemnify and hold CUSTOMER and its contractors and subcontractors and each of their respective officers, directors, legal representatives, managing director, employees, agents and interim staff, harmless for property damage and bodily injury arising from the Services when caused to Third Parties by the Launch Vehicle, and/or the Satellite, and/or the satellite of any Third Party Customer(s) of ARIANESPACE, and/or their components or any part thereof including during the period provided for in Paragraph 15.2 above for any amount in excess of the insured limits of said insurance policy. Upon expiration of the insurance in accordance with Paragraph 15.2, CUSTOMER shall be responsible for all liabilities for property damage and bodily injury

16.1

Title to all documents, data, and written information furnished to CUSTOMER by ARIANESPACE or its Associates during the performance of this Agreement shall remain exclusively with ARIANESPACE.

16.2

Title to all documents, data, and written information furnished to ARIANESPACE by CUSTOMER or its Associates during the performance of this Agreement shall remain exclusively with CUSTOMER or with said Associates as to their respective documents, data, and written information.

16.3

Each Party shall use the documents, data, and written information supplied to it by the other Party or the other Party’s Associates solely for the performance of this Agreement and any activities directly related thereto.

16.4

To the extent necessary for the performance of this Agreement, each Party shall be entitled to divulge to its own Associates the documents, data, and written information received from the other Party or from the other Party’s Associates in connection herewith, provided that such receiving person shall have first agreed to be bound by the nondisclosure and use restrictions of this Agreement.

16.5

Subject to the provisions of Paragraph 16.4, neither Party shall divulge any documents, data, or written information that it receives from the other Party or the other Party’s Associates, but shall protect all such documents and written information that are marked with an appropriate and valid proprietary or confidentiality legend from unauthorized disclosure except as provided herein, in the same manner as the receiving Party protects its own confidential information; provided, however, that each Party shall have the right to use and duplicate such documents, data, and written information for any Party purpose subject to the nondisclosure requirements and use restrictions provided herein.

16.6

The obligation of the Parties to maintain the confidentiality of documents, data, and written information shall not apply to documents, data, and written information that :

-

are not properly marked as confidential;

-

are in the public domain;

-

shall come into public use, by publication or otherwise, and due to no fault of the receiving Party;

-

the receiving Party can demonstrate were legally in its possession at the time of receipt;

-

are rightfully acquired by the receiving Party from third parties;

-

are commonly disclosed by ARIANESPACE or its Associates;

-

are inherently disclosed in any product or provision of any service marketed by ARIANESPACE or its Associates;

-

are independently developed by the receiving Party;

-

are approved for release by written authorization of the disclosing Party; or

-

are required, but only to the extent necessary, to be disclosed pursuant to governmental or judicial order, in which event the Party concerned shall notify the other Party of any such requirement and the information required to be disclosed prior to such disclosure.

16.7

The provisions of this Article 16 shall survive the completion of performance of Services under this Agreement and shall remain in full force and effect until said documents, data, and written information become part of the public domain; provided, however that each Party shall be entitled to destroy documents, data, and written information received from the other Party, or to return such documents, data, or written information to the other Party, at any time after Launch (or after Reflight, if any).

16.8

This Agreement and each part hereof shall be considered to be confidential by both Parties. Any disclosure of the same by one Party shall require the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed.

17.1

ARIANESPACE shall be obligated to obtain all required licenses, permits, authorizations, or notices of non-opposition from all national or international, public or private authorities having jurisdiction over the Launch Vehicle and Launch Mission.

17.2

CUSTOMER shall also be obligated to obtain, or cause an Associate to obtain, all required licenses, government permits and authorizations, including the necessary U.S. Export Authorization, for delivery of the Satellite and all equipment, devices and software to be provided by CUSTOMER on the Launch Base in order to prepare the Satellite for Launch, from its country of origin to the Launch Base, and, the use of the Satellite’s ground stations.

17.3

ARIANESPACE agrees to assist and support CUSTOMER and its Associates, at no expense, with any and all administrative matters related to the importation into French Guiana of the Satellite and all equipment, devices and software to be provided by CUSTOMER on the Launch Base in order to prepare the Satellite for Launch, and their storage and possible return, as well as to the entry, stay, and departure of CUSTOMER and its Associates.

18.1

CUSTOMER shall be entitled to terminate any particular Launch under this Agreement at any time prior to the Launch concerned. CUSTOMER’s right is not subject to any condition, and shall cover termination situations for reasons of convenience as well as those of delay or impossibility of performance in which one of the Parties may find themselves. Notice of termination shall be given by registered letter with acknowledgment of receipt, and termination shall immediately upon receipt of such letter by ARIANESPACE.

18.2

In case of termination by CUSTOMER in accordance with Paragraph 18.1, ARIANESPACE shall be entitled for the Launch terminated to the following termination fees:

18.2.1

Basic termination fees depending of the date of termination as follows:

      Effective date of termination      

            Percentage of P            

    Between [***] and [***]

[***] %

    After [***] (provided that C occurs    

    before [***])

[***] %

    If C occurs on or after [***]

[***] %

P

means (i) the Launch Services price of the Launch terminated other than a Reflight, and (ii) the Guarantee Amount for a Reflight,

C

means the initial L of the Launch concerned if no postponement has been requested by ARIANESPACE or otherwise the date obtained by adding to the first L of the Launch concerned the aggregate duration of Launch Period or Launch Slot postponement(s) requested by ARIANESPACE for such Launch pursuant to Sub-paragraph 11.3.1.1 of Article 11 of this Agreement.

18.2.2

Plus (i) any other amount(s) paid or due including, without limitation, postponement fees or late payment interest under the Agreement at the effective date of termination, and (ii) the price of those Associated Services provided, at CUSTOMER’s cost, which have actually been performed as of the date of termination.

18.2.3

Termination fees are due by CUSTOMER to ARIANESPACE as of the effective date of termination and payable within THIRTY (30) days of receipt by CUSTOMER of the corresponding invoice from ARIANESPACE. Any amounts paid by CUSTOMER for the Launch concerned in excess of the above termination fees shall be refunded promptly by ARIANESPACE to CUSTOMER. For the purpose of this Sub-paragraph 18.2.3, in the case of a Reflight, the Guarantee Amount shall be deemed to have been a payment by CUSTOMER.

18.3

In the event that:

(i)

Any launch services performed by ARIANESPACE on an ARIANE 5 vehicle following the execution of this Agreement result in a launch failure or significant launch anomaly, for any reason whatsoever; or

(ii)

If ARIANESPACE becomes aware or should reasonably be aware of a delay or anticipated delay, for any reason whatsoever (including, for example, a delay in the delivery of the Launch Vehicle or the Third Party Customer satellite to the Launch Base), that will or could be reasonably expected to delay CUSTOMER’s Launch Day beyond [***],

18.4

In addition to and not in derogation of CUSTOMER’s rights set forth in Paragraph 18.3 of this ARTICLE 18, in the event that the aggregate of all postponements requested by ARIANESPACE under Sub-paragraph 11.3.1.1 of Article 11 of this Agreement should, for any reason whatsoever, result in ARIANESPACE delaying a CUSTOMER’s Launch beyond [***], or should ARIANESPACE not be reasonably able to perform the Launch on or before [***], then CUSTOMER shall be entitled to terminate the Launch concerned at any time upon notice to ▇▇▇▇▇▇▇▇▇▇▇.▇▇ the event CUSTOMER agrees to a Rescheduled Launch Day following [***], such notice of termination must be delivered by CUSTOMER to ARIANESPACE no later than THIRTY-SIX (36) days prior to the Rescheduled Launch Day.

In the event that any additional postponements requested by ARIANESPACE under Sub-paragraph 11.3.1.1 of Article 11 of this Agreement should, for any reason whatsoever, result in ARIANESPACE delaying a CUSTOMER’s Launch beyond the applicable Rescheduled Launch Day, or should ARIANESPACE not be reasonably able to perform the Launch on or before the applicable Rescheduled Launch Day, CUSTOMER shall be entitled to terminate the Launch concerned at any time upon notice to ARIANESPACE. In the event CUSTOMER agrees to a new Rescheduled Launch Day, such notice of termination must be delivered by CUSTOMER to ARIANESPACE no later than THIRTY-SIX (36) days prior to the applicable Rescheduled Launch Day.

18.5

In the event that CUSTOMER does not terminate this Agreement in accordance with the provisions of Paragraphs 18.3, 18.4, or 18.5 of this ARTICLE 18 and CUSTOMER shall have agreed to a new Launch Period, Launch Slot or Launch Day where L is later than [***], then CUSTOMER shall be entitled to terminate the Launch concerned in the event of further delays requested by ARIANESPACE in accordance with Sub-paragraph 11.3.1.1 of Article 11 of this Agreement, or should ARIANESPACE not be reasonably able to perform the Launch on the L designated under this Paragraph 18.5.

18.6

CUSTOMER may terminate this Agreement at any time upon notice to ARIANESPACE following the occurrence of one or more of the following events or conditions: ARIANESPACE: (i) files a voluntary petition of bankruptcy; (ii) makes a general assignment, arrangement or composition with or for the benefit of creditors; (iii) suffers or permits the appointment of a receiver for its business assets; (iv) becomes subject to involuntary proceedings under any bankruptcy or insolvency law (which proceedings remain undismissed for NINETY (90) days); (v) is liquidated or is delinquent on any material payment required pursuant to this Agreement for greater

than THIRTY (30) days after written notice from CUSTOMER, except if ARIANESPACE is in good faith disputing the delinquency of the payment and the matter is referred to arbitration in accordance with the terms of Article 22.

18.7

Within THIRTY (30) days following receipt of any notice under Sub-paragraphs 18.3, 18.4, 18.5 and 18.6, ARIANESPACE shall refund to CUSTOMER all payments made by CUSTOMER for said Launch and CUSTOMER shall be liable only for the payment of Associated Services performed, at CUSTOMER’s cost, for the Launch terminated prior to the date of termination as invoiced by ARIANESPACE via submission of a certified accounting to CUSTOMER. For the purpose of Sub-paragraphs 18.3, 18.4, 18.5 and 18.6, in the case of a Reflight, the Guarantee Amount shall be deemed to have been a payment by CUSTOMER.

However, any postponements resulting from: (i) any damage caused by CUSTOMER and/or its Associates to the physical property of ARIANESPACE and/or the physical property of its Associates; and/or (ii) any bodily injury (including death) caused by CUSTOMER and/or its Associates to ARIANESPACE and/or its Associates shall result in extension of the [***] date or the [***] date, as the case may be, set forth in Paragraphs 18.4 and 18.5, respectively, on day-by-day basis commensurate with the duration of any postponements resulting from the aforementioned actions of CUSTOMER and/or its Associates.

18.8

If at any time following the effective date of this Agreement, ARIANESPACE becomes aware (including due to a notice or inquiry from CUSTOMER), to the best of its knowledge, of any potential event or circumstance that could result in a delay to the then-scheduled Launch Period, Launch Slot or Launch Day, then ARIANESPACE shall within FIVE (5) days of becoming aware of such event or circumstance, inform CUSTOMER in accordance with Paragraph 20.2 of this Agreement, as to the potential or actual impact of such event or circumstance to the then-scheduled Launch Period, Launch Slot or Launch Day (as applicable).

18.9

For any payments due to CUSTOMER pursuant to the terms of this Article 18, ARIANESPACE shall pay interest on any late or delayed payment of the applicable sum at the Base Rate from and including the date due to but excluding the date made. The computation of interest for late payments shall be based on a year of 360 days. Any refund required under this Article 18 shall be in United States Dollars, paid by wire transfer of immediately available funds to an account designated by CUSTOMER.

19.1

In the event that CUSTOMER fails to comply with its payment obligations pursuant to the payment schedule and other payment dates set forth in this Agreement for a Launch under this Agreement, and does not pay within THIRTY (30) days after the date of receipt of a written notice to that effect ARIANESPACE shall be entitled to terminate the Launch concerned by registered letter with acknowledgment of receipt.

19.2

In the event of termination by ARIANESPACE pursuant to the provisions of this Article 19, the provisions of Paragraph 18.2 of Article 18 of this Agreement shall apply.

20.1

Working language

20.2

Notices

ARIANESPACE

CUSTOMER

Immeuble Ariane

Boulevard de l’Europe, B.P. 177

91006 EVRY-COURCOURONNES Cedex

FRANCE

▇▇▇▇▇▇ Networks Systems

11▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

▇▇▇

Attention : Directeur Commercial

Telephone : ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇

Fax : ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇

Attention : [***]

Telephone : +[***]

Fax : +[***]

with copy to:

General Counsel

Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇

20.3

Waiver

20.4

Headings

20.5

Assignment

20.6

Entire Agreement and Modifications

20.7

Registration of CUSTOMER’s Satellite

ARIANESPACE

CUSTOMER

Name: ▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇

Name: ▇▇▇ ▇▇▇▇▇▇▇▇

Title: Chief Executive Officer

Title: Vice President

Date: February 28, 2007

Date: February 28, 2007

Signature /s/ ▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇

Signature /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇

Sales and Marketing Directorate – February 2007

Part 1

LAUNCH SPECIFICATION

    1.

General

    2.

Principal characteristics of the Launch

      2.1

      The Mission

      2.2

      Period, Slot, Day of the Launch

      2.3

      Launch Window

    3.

Main Interfaces

      3.1

      Mechanical Interfaces

      3.2

      Electrical and RF Interfaces

    4.

Environmental Conditions

    5.

Modification to the applicable documents

Part 2

ARIANESPACE TECHNICAL COMMITMENTS

    1.

Launch Service Management

    2.

Launch Vehicle hardware and software Supply

    3.

Systems Engineering

    4.

Operations

Part 3

CUSTOMER TECHNICAL COMMITMENTS

    1.

General

    2.

Hardware Supply

    3.

Schedule Obligations

    4.

Spacecraft Propellants and Hazardous Products

Part 4

DOCUMENTATION AND REVIEWS

    1.

Documentation

    2.

Meetings

Part 5

GENERAL RANGE SUPPORT (GRS) AND OPTIONAL SERVICES

    1.

General Range Support

      1.1

      Transport Services

      1.2

      Payload Preparation Facilities

      1.3

      Communication Links

      1.4

      Analyses

      1.5

      Operations

      1.6

      Fluid Deliveries

      1.7

      Additional Services

      1.8

      Miscellaneous

    2.

Options Price Catalogue

    3.

Options ordered by the Customer

·

Ariane 5 User’s Manual (MUA 5), Issue 4, Revision 0 (November 2004)

·

CSG Safety Regulations, CSG-RS-22A-CN Issue 5 Revision 6 (November 2006)

·

General specification for payload dynamic models, A5-SG-0-01 Issue 4 (March 2001)

·

Format for Spacecraft Environmental Test Prediction and Test Report – Documentation for Sine Test Support, LS-SG-1000000-X-001-ARIANESPACE Issue 0, Revision 0 (July 2006)

·

Technical specification for the payload thermal model, A4-SG-1-26 Issue [3] (October 1992)

·

BS-702/Ariane5 Compatibility Agreements, Boeing Ref. #TL-55-OC/00/RP/e026t Issue 2.1 (March 2001)

·

EPCU Manual, Revision 8.0 (October 2002)

Type of Mission                :

Type of Orbit                    :

Altitude of Perigee                              :

True altitude @ 1^st Apogee                :

Inclination                        :

Argument of Perigee                :

Separated Mass                :

As per Article 8 of the

Agreement

Mass @ Lift-Off                                   :

S/C Separation Conditions                :

Optimised for the Mission

See MUA5 §2.9               

Adapter (ACU) Interface:

Actuators Arrangement

S/C Separation Detection

2 microswitches (on adapter side)

ü

Long fairing

(All usable diameter volumes: 4.57m)

Location

Spacecraft J1

Spacecraft J2

MS 3424 E61 50S

Adapter P1 or P5

Adapter P2 or P6

MS 3446 E61 50P  

Service definition

Dry Loop command

Electrical command

Power supply

Pyrotechnic command

NO    

Altitude of Perigee

:

      [***]        

Altitude @ ▇^▇▇ ▇▇▇▇▇▇

:

      [***]        

Inclination

:

      [***]        

Argument of Perigee

:

      [***]        

Longitude of descending Node

:

      [***]        

v

Overall Launch Service management

v

Launch Vehicle hardware and software supply

v

Mission analysis

v

Launch Vehicle Operations

v

Launch site CUSTOMER support as described in Part 5

v

Documentation and meeting as described in Part 4

General Contract Management

Contract amendments, payments, master schedule, planning, configuration control, action items and milestone monitoring, documentation, reviews, meetings, etc...

Launch Vehicle Production

including quality plan

Test, acceptance, etc…

Mission Analyses

Launch Base Operations

Ground and Flight Safety

Interface with CSG for safety submissions

Launch Vehicle Hardware

Launch Vehicle Propellants

Payload Compartment

RF Window or Passive Repeater

One Flight Program

Spacecraft Adapter

As per chapt.3.1.1. of Part 1, including the

corresponding separation system

Umbilical Interface Connectors

As defined in chap. 3.2 of Part 1

Fairing or Dual Launch Support Structure

As defined in chapt.3.1.2 of Part 1

Access Doors

[***]

2 Check-Out Terminal Equipment [COTE] Racks

Compatible with the ARIANE 5 launch Table

1 Mission Logo

Artwork to be supplied at L-6 by customer

Interface Control Document (DCI) configuration control

Trajectory, Performance and Injection Accuracy AnalysisŒ

Separation Analysis (Clearance, Kinematics, Collision Avoidance)

Dynamic Coupled Loads Analysis (CLA)

Electromagnetic and Radio-Frequency Compatibility Analysis

Thermal Analysis

Support for S/C Environmental Tests

S/C orbital parameters & attitude date from L/V

telemetry (at S/C Separation)

Œ

The spacecraft orbital parameters at separation are provided as part of this analysis.



The final analyses are carried out with the final flight configuration

Launch Vehicle Operations

All operations without the S/C

Combined Operations (POC)

S/C – Launch Vehicle Integration

Countdown Rehearsal

Lift-Off – 3 days

Countdown Execution:

Up to Lift-Off

Spacecraft Hardware

Spacecraft Propellants

Spacecraft Simulator

Representative of the Spacecraft electrical systems in interface with the Launch System.

Used for electrical validations during fit-check, if any, and launch campaign.

Mechanical and Electrical

Ground Support Equipment

As required to operate the Spacecraft on the launch site (with the exception of those temporarily or permanently provided by ARIANESPACE as listed in the GRS – see Part 5)

·

Specify the mission Requirements

·

Demonstrate the compatibility of the ARIANE 5 mission with the CUSTOMER requirements.

·

Demonstrate the compatibility of the Spacecraft with the ARIANE flight environment and specifications.

  Ref.

1

Application to use Ariane (DUA) or marked-up DCI

[***]

Safety Submission Phase 1

[***]

2

Safety Submission Phase 2

[***]

3

S/C mechanical environmental test plan

[***]

4

S/C Thermal Model according to SG-1-26

[***]

5

S/C Launch Operations Plan (POS)

[***]

6

S/C Dynamic Model (final) according to SG-0-01

[***]

7

S/C operations procedures applicable at CSG, including Safety Submission Phase 3

[***]

8

Environmental Testing : instrumentation plan, notching plan, test prediction for sine test according to LS-SG-1000000-X-001-AE

-  

9

Environmental Testing : instrumentation plan, test plan for acoustic test according to LS-SG-1000000-X-001-AE

-  

10

S/C final Launch Window

[***]

11

S/C mechanical environment tests results according to LS-SG-1000000-X-001-AE

-  Ž

12

Final S/C mass 

-  

13

Orbital Tracking Report (orbit parameters and attitude at separation)

[***]

Ref.

1

Interface Control Document (DCI) :

Before RAMF
After RAMF

Issue 0

[***]      

Issue 1, rev 0

[***]      

Issue 2, rev 0

[***]      

2

Final Mission Analysis Documents

(including final CLA and Thermal

Analysis Report)

[***]      

3

Interleaved Operations Plan (POI)

[***]      

4

Combined Operations Plan (POC)

[***]      

5

Countdown sequence

[***]