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Exhibit 10.10
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LAUNCH SERVICES AGREEMENT
BETWEEN
EARTHWATCH INCORPORATED
AND
UNITED START CORPORATION
FOR THE LAUNCH OF
EARTHWATCH REMOTE SENSING SPACECRAFT
JUNE 7,1999
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Launch Services Agreement
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ARTICLE 1: DEFINITIONS........................................................1
ARTICLE 2: SERVICES TO BE PROVIDED BY PROVIDER AND SUBCONTRACTOR..............4
ARTICLE 3: CUSTOMER'S RESPONSIBILITIES........................................5
ARTICLE 4: LAUNCH SERVICES SCHEDULE...........................................5
ARTICLE 5: PRICES.............................................................6
ARTICLE 6: PAYMENT TERMS......................................................7
ARTICLE 7: LAUNCH SCHEDULE ADJUSTMENTS........................................8
ARTICLE 8: RIGHTS OF OWNERSHIP AND CUSTODY...................................10
ARTICLE 9: LAUNCH SUCCESS AND LAUNCH FAILURE.................................11
ARTICLE 10: REPLACEMENT LAUNCH................................................11
ARTICLE 11: EXCUSABLE DELAY...................................................13
ARTICLE 12: THIRD PARTY LIABILITY INSURANCE...................................13
ARTICLE 13: INSURANCE SUPPORT.................................................14
ARTICLE 14: ALLOCATION OF RISKS...............................................14
ARTICLE 15: RIGHTS TO INTELLECTUAL PROPERTY...................................17
ARTICLE 16: LICENSES, PERMITS AND APPROVALS...................................17
ARTICLE 17: CONFIDENTIAL DATA.................................................19
ARTICLE 18: TERMINATION.......................................................21
ARTICLE 19: NOTICES AND LANGUAGE..............................................23
ARTICLE 20: COORDINATION AND COMMUNICATIONS...................................24
ARTICLE 21: AMENDMENTS........................................................25
ARTICLE 22: ASSIGNMENT........................................................25
ARTICLE 23: SETTLEMENT OF DISPUTES............................................25
ARTICLE 24: APPLICABLE LAW....................................................26
ARTICLE 25: WAIVER OF BREACH..................................................27
ARTICLE 26: ENTIRE AGREEMENT..................................................27
ARTICLE 27: PUBLIC RELEASE OF INFORMATION.....................................27
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ARTICLE 28: PROVIDER/SUBCONTRACTOR ASSISTANCE REGARDING TECHNICAL
SECURITY......................................................................27
ARTICLE 29: ACCESS TO WORK IN PROGRESS AND DATA...............................29
ARTICLE 30: ORDER OF PRECEDENCE...............................................29
ARTICLE 31: GENERAL...........................................................30
ARTICLE 32: EFFECTIVE DATE....................................................30
ARTICLE 33: MILESTONE EVENTS..................................................30
ARTICLE 34: EFFECTIVITY OF AGREEMENT..........................................32
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LAUNCH SERVICES AGREEMENT
This Launch Services Agreement (the "LSA") is made and entered into this ___ day
of ______________ by and between United Start Corporation (hereinafter referred
to as "PROVIDER" and/or "GENERAL CONTRACTOR"), a corporation duly organized and
validly existing under the laws of the Delaware, having its principal place of
business at 475 Highland Drive, Madison, AL 35758, and EarthWatch Incorporated,
a corporation duly organized and validly existing under the laws of Delaware,
having its principal place of business at 1900 Pike Road, Longmont, CO 80501,
USA ("CUSTOMER").
WHEREAS PROVIDER, serving in the role of GENERAL CONTRACTOR for the requested
launch service, will subcontract the performance of most elements of this Launch
Services Agreement to Puskovie Uslugi ("SUBCONTRACTOR"), a corporation duly
organized and validly existing under the laws of Russia, having its principal
place of business at 10/1 Beryozovaya alleya, Moscow, 127276, Russia; and
WHEREAS CUSTOMER has requested that PROVIDER launch CUSTOMER's remote sensing
spacecraft using a SUBCONTRACTOR's launch vehicle; and
WHEREAS CUSTOMER and PROVIDER wish to set forth their agreement for the
provision of launch and associated services by PROVIDER in accordance with the
terms and conditions of this LSA;
NOW, THEREFORE, the Parties agree as follows:
Article 1: Definitions
In this LSA, capitalized terms used and not otherwise defined herein shall have
the following meanings, such terms being equally applicable to the singular and
plural forms:
Agents for Spacecraft and Launch Support: CUSTOMER may choose to designate one
or more Agents for Spacecraft and/or Launch Support, intended to provide
spacecraft integration services and related launch site services generally
stipulated by US policy, licensing and other rules. The task to be performed by
such an Agent shall be other than those identified in the SOW of this LSA. The
involvement of the Agent(s) will not relieve PROVIDER from the responsibility to
perform all the tasks identified in this LSA.
Ancillary Equipment: all equipment, devices and software specified by written
agreement to be provided by CUSTOMER at the Launch Site in order to prepare the
CUSTOMER Spacecraft for the performance of Launch Services.
Archival Data: Image data of the territory of Russia or the Commonwealth of
Independent States that was previously taken by a QuickBird spacecraft and
exists in the EarthWatch data archive in Longmont, Colorado.
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Associated Services: the services other than Launch Services, to be provided by
PROVIDER as specified in Article 2 and in the Statement of Work, Exhibit A
hereto.
Confidential Data: as defined in Paragraph 17.1 of this LSA.
CUSTOMER Spacecraft: all property, including the spacecraft, as described in the
Statement of Work, Exhibit A hereto, to be flown aboard the Launch Vehicle (in a
Launch, in a Replacement Launch or in a Option Launch), that is provided by
CUSTOMER
Deliverables; Launch services, associated material, and/or documentation as
required by Exhibit A, Statement of Work, provided to the CUSTOMER under this
agreement. The Launch Vehicle is not a deliverable.
Due Date: The date indicated in Exhibit B, Payment Schedules, expressed as: (1)
a date within a specified number of days from the Effective Date of this LSA,
(2) a date within a specified number of days from the satisfactory completion of
a Milestone Event, or (3) the date of the later of (1) or (2).
Effective Date: as defined in Article 32 of this LSA.
Establishment Date: as defined in Article 4.5 of this LSA.
Excusable Delay: as defined in Paragraph 11.1 of this LSA.
Intellectual Property: any inventions, software, designs, patents, trademarks,
registered designs, copyrights, trade secrets and other proprietary data or
information of a Party.
Interface Control Document: as defined in the Statement of Work.
Launch: reference Exhibit D.
Launch Attempt: reference Exhibit D.
Launch Day: reference Exhibit D.
Launch Failure: reference Exhibit D.
Launch Period: reference Exhibit D.
Launch Services: reference Exhibit D.
Launch Site: reference Exhibit D.
Launch Success: reference Exhibit D.
Launch Technical Specification: reference Exhibit D.
Launch Time: reference Exhibit D.
Launch Vehicle: reference Exhibit D.
Launch Window: reference Exhibit D.
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Lift-off: reference Exhibit D.
Milestone Event: A task of sufficient importance and accomplishment that it
warrants the establishment of an earned value as specified in Exhibit B of this
LSA. The procedures by which CUSTOMER verifies the completion of Milestone
Events are specified in Articles 29 and 33 of this LSA
Missile Technology Control Regime: the Policy Statement between the United
States, United Kingdom, the Federal Republic of Germany, France, Italy, Canada,
and Japan, announced on April 16, 1987 and as defined by the United States
Department of State, International Traffic in Arms Regulations, 22 C.F.R. (S)
120.29.
Nominal Lifetime: 5 years from Successful Launch.
On-Orbit Spacecraft Failure: Any failure, occurring either singularly or in the
aggregate, in accordance with Article 9, resulting in a reduction of at least
twenty percent (20%) of the Nominal Lifetime or of the functionality of a
CUSTOMER Spacecraft or any of its systems or subsystems within twelve (12)
months after the Successful Launch of that spacecraft shall be deemed to be an
On-Orbit Spacecraft Failure.
Party: CUSTOMER or PROVIDER, according to the context in which the term is used.
Spacecraft Processing Facility: the complex composed of various facilities and
equipment located at, in the vicinity of the Launch Site, or designated by
PROVIDER and acceptable to CUSTOMER as the integration area for the Launch Site
to be used by CUSTOMER for the preparation of the CUSTOMER Spacecraft for
Launch.
Related Participants: all persons, other than the Parties and any Third Parties,
in direct or indirect contractual privity with or having a beneficial interest
in either Party, acting directly or indirectly to perform this LSA, including
without limitation, SUBCONTRACTOR, the contractors, other sub-contractors at any
tier (and suppliers of any kind) and the respective officers, directors and
agents of each of the foregoing, or any of them. For only the purpose of Article
14, ALLOCATION OF RISKS, Related Participants shall include any person with any
right, title or interest in the CUSTOMER Spacecraft.
Request Date: as defined in Article 4.2 of this LSA.
Replacement Launch: a re-launch as defined in Article 10, REPLACEMENT LAUNCHES,
of this LSA.
START Treaty: includes both START I Treaty and the START II Treaty. START I is
the "Treaty Between the United States of America and the Union of Soviet
Socialist Republics on the Reduction and Limitation of Strategic Offensive
Arms," July 31, 1991, Treaty Doc. 102-20, agreed to by the Russian Federation
pursuant to the "Lisbon Protocol," May 23, 1992, United States of America, the
Russian Federation, the Republic of Belarus, the Republic of Kazakhstan, and
Ukraine. START II is the "Treaty Between the United States of America and the
Russian Federation on Further Reduction and Limitation of Strategic Offensive
Arms," January 3, 1993, Treaty Doc. 103-1, when ratified by the Russian
Government.
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Statement of Work or SOW: as set forth in Exhibit A, "Statement of Work", hereto
and made a part hereof.
Technical Data: as defined by the Department of State, International Traffic in
Arms Regulations, 22 C.F.R. (S) 120.10.
Technology Assistance Agreement: means any and all Technology Assistance
Agreements between CUSTOMER and PROVIDER and including SUBCONTRACTOR as
necessary.
Technology Transfer Control Plan: means the Technology Transfer Control Plan
required by the United States Department of State, Office of Defense Trade
Controls and agreed to by CUSTOMER and PROVIDER (including SUBCONTRACTOR if
appropriate) as a condition of any license or authorization to export the
CUSTOMER Spacecrafts to be launched by PROVIDER pursuant to this LSA, any
Ancillary Equipment or any Technical Data related to such CUSTOMER Spacecrafts
or Ancillary Equipment PROVIDER shall be solely responsible for obtaining any
such necessary agreements, licenses or authorization relating to SUBCONTRACTOR.
Third Party: any person or legal entity other than the Parties and the Related
Participants.
Article 2: Services To Be Provided
2.1 PROVIDER, in consideration for payments made by CUSTOMER under this LSA,
and in accordance with the terms and conditions contained herein, shall
implement the research and development work for providing Launch Services
and Associated Services for the Launch of one CUSTOMER Spacecraft. These
Services shall be as described in the Statement of Work, Exhibit A hereto,
utilizing the Launch Vehicle for the purpose of launching the CUSTOMER
Spacecraft into earth orbit from the Launch Site.
2.2 The results of the above mentioned research and development work shall be
presented to Customer in the form of a Final Report. The Final Report shall
be produced in English and Russian and shall be provided in paper hardcopy
and electronic format. Right of ownership in research-engineering products
made in the framework of the LSA is transferred to Customer upon signing
the bilateral Acceptance Certificate.
2.3 In the event that any Launch results in a Launch Failure, or if an On-Orbit
Spacecraft Failure occurs, PROVIDER will provide, or cause SUBCONTRACTOR to
provide, Replacement Launches in accordance with the provisions of Article
10, REPLACEMENT LAUNCHES, hereof.
2.4 All Data and documentation in connection with the Launch Services and
Associated Services shall be delivered to CUSTOMER in accordance with the
requirements specified in the Statement of Work.
2.5 CUSTOMER is provided the option for additional launches under this LSA, as
specified in Exhibit B. CUSTOMER may elect to exercise its option for an
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additional launch by providing written notice to PROVIDER, and by paying
the initial payment for the launch as specified in Exhibit B.
2.6 In the event Provider is unable or unwilling to perform its obligations
under this LSA, Customer shall have the right to require that Provider
assign to Customer all of its rights under any and all subcontracts. Such
subcontracts shall contain terms naming CUSTOMER as an intended third party
beneficiary.
2.7 Provider as General Contractor will fulfill all its obligations under any
subcontract, including the payment of funds to subcontractors as required.
Provider shall include with its invoices to Customer a release and waiver,
in form satisfactory to Customer, from all subcontractors, confirming
payment by Provider for all subcontractor services as of the date of the
invoice.
Article 3: CUSTOMER's Responsibilities
3.1 CUSTOMER shall perform its obligations under this LSA and as set forth in
the Statement of Work, Exhibit A hereto, including reasonable efforts to
meet the agreed schedule, and the delivery, at its expense, of the CUSTOMER
Spacecraft and the Ancillary Equipment to the Launch Site in order to meet
the Launch Services Schedule set forth in Article 4, LAUNCH SERVICES
SCHEDULE and the requirements for integration specified in the Statement of
Work, Exhibit A hereto.
3.2 CUSTOMER shall cause to have identified by documentation in the Spacecraft
Export License or other Government document, the "peaceful, non-military
purposes" aspect of the spacecraft data collection in accordance with the
16 December 1994 Agreement between the Government of the Russian Federation
and the Government of the United States of America, regarding customs
regulations. The same type of documentation that has been provided by
CUSTOMER to PROVIDER previously, for the launch of EarlyBird-1 on Start-1,
shall be deemed by both parties to satisfy the requirements of this
Paragraph 3.2.
3.3 CUSTOMER shall identify to PROVIDER any tasks that have been delegated to
an Agent or Agents, and the authority assigned to the Agent with regards to
mutual operations with PROVIDER and/or SUBCONTRACTOR.
Article 4: Launch Services Schedule
4.1 For each launch, PROVIDER shall provide Launch Services to CUSTOMER on a
Launch Day, to be selected in accordance with the provisions of this
Article 4. For a given Launch Day, the Launch Time is determined by
PROVIDER with such information as necessary so as to satisfy the desired
orbital parameters and so as to take place during the Launch Window.
4.2 When CUSTOMER has decided upon its desired Launch Day, it will make a
written proposal to PROVIDER requesting that desired Launch Day. The date
on which CUSTOMER submits this proposal shall be referred to as the
"Request Date". PROVIDER shall respond to this request within fifteen (15)
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days of the Request Date, providing CUSTOMER with a Launch Day in
accordance with Paragraph 4.3 after such consultation with the
SUBCONTRACTOR as necessary.
4.3 PROVIDER shall use its best efforts to provide a Launch Day that is as
close to that requested by CUSTOMER as possible. PROVIDER shall consult
with the SUBCONTRACTOR as necessary to assure a Launch Day that is as close
to that requested by CUSTOMER as possible. In all cases, however, the
Launch Day shall lie within the Launch Period, which begins with the
requested Launch Day and extends until the later of: (i) one (1) month
after the requested Launch Day; or (ii) eight (8) months after the Request
Date.
4.4 The Launch shall take place during the Launch Window.
4.5 The date on which agreement is first reached between CUSTOMER and PROVIDER
on a Launch Day, in accordance with the provisions of Paragraphs 4.2
through 4.4, shall be referred to as the "Establishment Date".
Article 5: Prices
5.1 CUSTOMER shall pay PROVIDER for the Launch Services and Associated Services
to be provided pursuant to this LSA, the firm-fixed price for each Launch
as stated in Exhibit B including Replacement Launches as specified in
Article 10 hereto.
5.2 The price set forth in Exhibit B for each Launch is the firm and fixed
price for the cost of the Launch Services and the Associated Services,
including, without limitation, the cost of the third party liability
insurance specified in Article 12, THIRD PARTY LIABILITY INSURANCE, and all
taxes and duties that may be imposed by the Governments of the Russian
Federation and/or any other Republic of the Commonwealth of Independent
States (C.I.S.) or by any local governmental authorities in the territory
of the Russian Federation or any other Republic of the C.I.S.
5.3 The price set forth in Paragraph 5.1 does not include: (1) any amounts
payable by CUSTOMER pursuant to Article 7, LAUNCH SCHEDULE ADJUSTMENTS; (2)
shipping and insurance expenses for CUSTOMER equipment and personnel to and
from Russia and within Russia, both to and from the Launch Site; (3) living
and lodging expenses for CUSTOMER personnel within Russia with the
exception of the personnel listed in Paragraph 3.1.4.2, SOW-3; and (4)
certain services and supplies, including petroleum, oils and lubricants
("POL"), compressed gasses and other industrial consumables, which shall be
provided on a least-cost, reimbursable basis at the Launch Site. PROVIDER
will use its best efforts to obtain the lowest possible price for these
services for CUSTOMER.
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Article 6: Payment Terms
6.1 The prices referred to in Article 5, PRICES, herein shall be paid by
CUSTOMER in accordance with the progress payment schedule set forth in
Exhibit B hereto ("Payment Schedule").
6.2 PROVIDER shall deliver to CUSTOMER an invoice for each payment as specified
in Exhibit B on the Due Date of such payment. Following receipt of
PROVIDER's invoice, CUSTOMER shall pay the amount due not later than the
number of days following the Due Date that are specified in Exhibit B (some
Due Dates are not established until satisfactory completion of the
Milestone Event for that payment). When the Due Date follows satisfactory
completion of a Milestone Event, verification of the successful completion
of the Milestone Event shall be submitted with the invoice.
Invoices for the amounts covered under Paragraph 5.3 (3) and (4) of this
LSA shall be submitted on net 30-day terms following delivery of the
service or consumable respectively.
6.3 With the exception of Archival Data payments as set forth in Exhibit B, all
payments to be made to PROVIDER hereunder shall be made in U.S. Dollars by
electronic funds transfer to the following PROVIDER account:
Branch Banking and Trust Company
1722 I Street NW
Washington, D.C. 20006
ABA #054001547
A/C United Start Corporation
A/C #3000092641
Terms and conditions for Archival Data payments shall be set forth in the
Amendment executed in accordance with Article 21, AMENDMENTS, subject to
the criteria identified in Exhibit B.
CUSTOMER shall not be required to transfer funds to an account or in a
manner which would violate U.S. Law. All funds shall be considered
"received" by PROVIDER when transferred to the bank designated by PROVIDER.
6.4 Invoices for all amounts payable to CUSTOMER under this LSA shall be
submitted as set forth in Article 19, NOTICES AND LANGUAGE in one (1)
original and two (2) copies to:
EarthWatch Incorporated
1900 Pike Road
Longmont, CO 80501
Attn: Accounts Payable
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6.5 All payments to be made to CUSTOMER hereunder shall be made in U.S. Dollars
by Electronic Funds Transfer to a bank designated by CUSTOMER in writing to
PROVIDER.
6.6 Past due payments owed by either Party shall bear interest at LIBOR rate,
as quoted in The Wall Street Journal for six month contracts on the day
payment is due (or, if The Wall Street Journal is not published on such
day, on the next following day of publication). The interest for the past
due period shall be calculated on the basis of three hundred sixty (360)
days per year, and shall apply for the number of days past the due date for
the payment until payment is made.
6.7 Payments made under this LSA shall not be deemed to constitute a waiver of
any rights, either expressed or implied, that either Party may have under
this LSA.
6.8 Payments listed in Exhibit B as "Archival Data" shall be made in the form
of the right to issue sublicenses for the use of CUSTOMER Archival Data at
CUSTOMER's reference price list less standard reseller discounts, subject
to standard End User's License Agreement terms and conditions. This data
may be licensed by PROVIDER only to native Russian governmental and
commercial organizations for their internal use only within territory of
Russia or the Commonwealth of Independent States. This Archival Data
credit, unless used by PROVIDER, shall expire 2 years following the initial
availability of CUSTOMER data from the CUSTOMER Spacecraft launched under
this LSA.
Article 7: Launch Schedule Adjustments
7.1 Changes to the Launch Schedule for each Launch by either Party must be
requested in writing and shall be governed by the following terms and
conditions.
7.2 Launch Schedule Changes Requested by CUSTOMER.
7.2.1 CUSTOMER may request a change to the Launch Day in accordance with
the provisions of this Section 7.2. CUSTOMER will give written
notice of any desired change in the Launch Schedule as soon as
possible, in accordance with Article 20, COORDINATION AND
COMMUNICATIONS, and will propose a new Launch Day. Within two (2)
weeks of receipt of the written request for a Launch Schedule
adjustment, PROVIDER will inform CUSTOMER whether or not such
schedule adjustment is reasonably available, and, if not, PROVIDER
shall propose an alternative Launch Day, subject to the requirements
of Article 7.2.2. CUSTOMER has fifteen (15) days following receipt
of PROVIDER's response to accept or refuse in writing. In the event
that CUSTOMER does not agree to the proposed alternative, CUSTOMER
shall request another Launch Day. The procedure, as described above,
shall be followed until agreement is reached between the Parties.
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7.2.2 PROVIDER will use its best efforts to schedule a Launch Day that is
as close as possible to the requested Launch Day. In all cases,
PROVIDER shall schedule a Launch Day within the limitations imposed
by Article 4.
7.2.3 The postponement fee for CUSTOMER-requested delays of the Launch Day
shall be US$80,000 per month for delays in excess of ten days
(cumulative), provided that such delays are announced at least
thirty (30) days prior to the Launch Date. This fee shall be
prorated on a daily basis for the portion of a delay that is less
than one month. The postponement fee for CUSTOMER-requested delays
of the Launch Day shall be US$7,500 per day for delays in excess of
seven days (cumulative) that is announced less than thirty (30) days
prior to the Launch Day. If a CUSTOMER requested delay, announced
less than thirty days (30) prior to the planned launch, results in a
delay of more than 60 days, the postponement fee shall revert back
to the $80,000 per month rate until such time as the project is
again within 30 days of the new launch date. Postponement fees shall
be payable within thirty (30) days following receipt of an invoice
from PROVIDER. Such invoices shall be sent after every three months
of cumulative postponement, with a final invoice for postponement to
be sent at the time of launch for any outstanding postponement of
less than three months.
7.2.4 Cumulative postponements by CUSTOMER under this Article 7 shall not
exceed a total of twenty six (26) months for each Launch, or shall
not extend the Launch Date past January 30, 2002, whichever is
sooner. In the event that a single postponement or cumulative
postponements by CUSTOMER exceed the aforementioned limit for a
Launch, the price payable for the Launch shall be subject to
renegotiations by the Parties.
7.3 Launch Schedule Changes Requested by PROVIDER
7.3.1 PROVIDER may request a change to the Launch Day in accordance with
the provisions of this clause. In case of a request for Launch
postponement, PROVIDER shall notify CUSTOMER in writing and a new
Launch Day will be established by mutual agreement between the
Parties. PROVIDER will promptly provide written notice to CUSTOMER
of any action, which will result in the postponement of a Launch.
7.3.2 Cumulative postponements by PROVIDER under this Article shall not
exceed a cumulative total of thirty (30) days for each Launch. In
the event that a single postponement or cumulative postponements by
PROVIDER exceed thirty (30) days for any one Launch, CUSTOMER shall
have the right either (1) to terminate such Launch Service(s) in
accordance with the provisions of Paragraph 18.4.3 of Article 18,
TERMINATION, of this LSA, or (2) to receive a
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postponement fee of US$7,500 per day of postponement in excess of
fifteen (15) days, subject to a cumulative maximum of US$750,000 per
Launch.
7.3.3 Notwithstanding the foregoing, PROVIDER may change the established
Launch Day by a cumulative amount of fifteen (15) calendar days
within the established Launch Period for each Launch without fee or
penalty.
7.3.4 Any postponement fees or liquidated damage amount incurred by
PROVIDER will be due CUSTOMER within thirty (30) days of the receipt
of a CUSTOMER invoice.
7.4 In the event of a launch postponement due to an excusable delay under
Article 11, EXCUSABLE DELAY, herein, the Launch Schedule for the postponed
Launch shall be extended for a period of time equal to such period of
Excusable Delay, and the limitation on cumulative postponements in
Paragraph 7.2.4 shall also be extended for a period of time equal to such
period of Excusable Delay, without fee or penalty.
Article 8: Rights of Ownership and Custody
8.1 Except for title to the Deliverables under this agreement, CUSTOMER hereby
acknowledges and agrees that at no time shall it obtain title to or
ownership of, or any other legal or equitable right or interest in any part
of the Launch Vehicle, or in, any other tangible or intangible property or
hardware of PROVIDER and/or SUBCONTRACTOR or their Related Participants
including, without limitation, any Intellectual Property rights used or
furnished in providing Launch Services and Associated Services under this
LSA. Such property shall be considered the sole and exclusive property of
PROVIDER or SUBCONTRACTOR. The Launch Vehicle at all times shall be subject
to the jurisdiction and control of the Russian Federation and the Launch
Vehicle shall at all times be under the continuous custody of
SUBCONTRACTOR.
8.2 PROVIDER and SUBCONTRACTOR hereby acknowledge and agree that at no time
shall they obtain title to or any ownership of, or any other legal or
equitable right or interest in, any part of the CUSTOMER Spacecraft or the
Ancillary Equipment, or in any other tangible or intangible property or
hardware of CUSTOMER or its Related Participants including, without
limitation, any Intellectual Property rights with respect to the CUSTOMER
Spacecraft or the Ancillary Equipment. Such property shall be considered to
be the sole and exclusive property of CUSTOMER. The CUSTOMER Spacecraft
shall at all times be under the continuous custody of CUSTOMER.
8.3 SUBCONTRACTOR shall be authorized to destroy the Launch Vehicle and the
Spacecraft in the event that, following Launch, such action shall prove
necessary to avoid damage or injury to persons or property.
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Article 9: Launch Success and Launch Failure
The performance of Launch Services shall be considered either a success or a
failure in accordance with the following criteria:
9.1 Launch Success (or "Successful Launch") shall be a Launch that is not a
Launch Failure (according to the definition of Launch Failure in Paragraph
9.2).
9.2 Launch Failure: The performance of the Launch Services hereunder shall be
considered to be a Launch Failure in the event that loss of or damage to
the CUSTOMER Spacecraft is caused solely and directly by Launch Vehicle
failure or Launch Vehicle-induced conditions more severe than those
specified in the Statement of Work, Exhibit A hereto, specifically:
9.2.1 The CUSTOMER Spacecraft is not placed into the orbit specified in
the Statement of Work, or was placed there with release tip-off
rates greater than those specified in the Statement of Work, or was
(re) contacted by the fairing, bus, or other rocket components
during ascent and release, or if the maneuvers performed by the bus
are not in accordance with the Mission Analysis; or
9.2.2 The CUSTOMER Spacecraft is exposed to shock or other mechanical,
acoustic, or electromagnetic loads more severe than that specified
in the SOW, as measured on the Launch Vehicle or spacecraft
telemetry; or
9.2.3 The time sequence for pre-launch and launch actions, including
individual tolerances identified for each time-sensitive event, is
not followed as in the Mission Analysis.
9.3 Corrective Actions Following Any Launch Failure: In the event of any
failure of any launch performed by SUBCONTRACTOR (regardless of whether
the launch was performed for CUSTOMER or for any other purpose), PROVIDER
shall cause SUBCONTRACTOR to take all actions necessary to correct the
cause or causes of such failure or failures as may be required by CUSTOMER
and/or insurance underwriter acceptable to CUSTOMER. PROVIDER,
SUBCONTRACTOR and CUSTOMER will both use their Best Efforts to determine
the cause in the event of a Launch Failure of a CUSTOMER launch.
In the event that the launch that failed carried a CUSTOMER Spacecraft,
CUSTOMER shall use its best efforts in the correction of the
aforementioned failures, to the extent that such failures are attributable
to the spacecraft and not the launch vehicle.
Article 10: Replacement Launch
10.1 PROVIDER's and/or SUBCONTRACTOR's obligation to provide a Replacement
Launch applies to all Launch Services to be provided by PROVIDER and/or
SUBCONTRACTOR, including any Replacement Launch
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that is considered to be a Launch Failure or an On-Orbit Spacecraft
Failure, subject to the limitations of Paragraph 10.3.
10.2 In the event of a Launch Failure, in accordance with Paragraph 9.2,
CUSTOMER shall have the option to require PROVIDER and SUBCONTRACTOR to
provide a Replacement Launch. The total firm and fixed price for any
Replacement Launch provided pursuant to this Paragraph 10.2 shall be as
specified in Exhibit B.
10.3 In the event of an On-Orbit Spacecraft Failure, CUSTOMER shall have the
option to require PROVIDER and SUBCONTRACTOR to provide a Replacement
Launch. The total firm and fixed price for the Replacement Launch provided
pursuant to this Paragraph 10.3 shall be as specified in Exhibit B.
10.4 The cost of a Replacement Launch includes those costs enumerated in
Paragraph 5.1 of this LSA but does not include the replacement cost of the
CUSTOMER Spacecraft(s) nor does it include those costs enumerated in
Paragraph 5.3 of this LSA.
10.5 CUSTOMER's request for a Replacement Launch must be made in writing and
received by PROVIDER no later than 12 months after the occurrence of the
Launch Failure or On-Orbit Spacecraft Failure, as the case may be.
10.6 In the event CUSTOMER requests a Replacement Launch pursuant to this
Article 10, REPLACEMENT LAUNCH, PROVIDER and SUBCONTRACTOR shall provide a
Replacement Launch within eight (8) months from written notice by CUSTOMER
or such later period of time as may be determined by CUSTOMER.
10.7 The terms and conditions of this LSA and the Subcontract shall govern the
Launch Services and Associated Services to be performed in connection with
a Replacement Launch.
10.8 The Spacecraft for the Replacement Launch shall be in accordance with the
Interface Control Document applicable to the CUSTOMER Spacecraft. If the
Spacecraft for the Replacement Launch has different interface requirements
such that PROVIDER and/or SUBCONTRACTOR shall be required to modify the
Launch Vehicle to provide the Replacement Launch, then the Parties shall
negotiate in good faith any changes and additional payments to be made by
CUSTOMER for such differences.
10.9 Upon the occurrence of a Launch Failure or an On-Orbit Spacecraft Failure
and in the event either Party is not already aware thereof, that Party
shall notify the other in writing and shall describe, to the extent
possible, the details of the Launch Failure or On-Orbit Spacecraft
Failure. Upon the second party's request, the first party shall provide,
on a timely basis, evidence as to the damage to or loss of the CUSTOMER
Spacecraft as a result of the Launch Failure or On-Orbit Spacecraft
Failure.
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Article 11: Excusable Delay
11.1 Except as specifically provided in paragraphs 16.4 and 16.5, neither
CUSTOMER nor PROVIDER shall be liable to the other in the event of a
failure or delay in the performance of their respective obligations or
commitments hereunder in the event that such failure or delay was
unforeseeable and due to a cause beyond CUSTOMER's or PROVIDER's
reasonable control, as the case may be, and not due to that Party's fault
or negligence. Such causes include, without limitation, the following:
acts of God, acts of any governmental authority in its sovereign capacity,
wars (declared or undeclared), riots or social uprisings, revolutions,
fires, floods, typhoons, earthquakes, freight embargoes, strikes, lock-
outs or other labor disturbances, adverse weather or declared launch
safety conditions that do not permit a Launch ("Excusable Delay").
11.2 In the event of an Excusable Delay, the Party so affected shall promptly
inform the other Party in writing of the date, nature, extent of the
occurrence and, in the event of a delay, its expected length. The Party so
affected shall use its good faith best efforts and all means reasonably
available to it to overcome such occurrence. Both Parties shall consult as
soon as possible after the occurrence of an Excusable Delay to find an
appropriate solution. Such efforts shall include, without limitation, the
expediting of materials and the provision of additional labor
notwithstanding that such efforts may result in additional expense to the
affected Party, provided such additional expense is reasonable.
11.3 The schedule for the Launch Services affected by an Excusable Delay may be
postponed, if required, for the period of the Excusable Delay, without fee
or penalty.
Article 12: Third Party Liability Insurance
12.1 In order to protect each Party and their Related Participants against any
claims including by any Third Party arising out of, relating to or
resulting from the Launch Services or Associated Services provided under
this LSA, PROVIDER shall procure and maintain, and shall cause
SUBCONTRACTOR and any other subcontractors to PROVIDER OR SUBCONTRACTOR to
procure and maintain, at no cost to CUSTOMER, an occurrence basis type
insurance policy covering any and all claims, losses, damages, expenses
and liability for bodily injury, including death, and loss of or damage to
property. Such insurance shall be in the amount of one hundred million
U.S. Dollars (US$100,000,000) per Launch and in the aggregate and shall be
obtained from commercial insurance carriers acceptable to CUSTOMER. Such
insurance shall name CUSTOMER and its Related Participants as additional
insured and shall provide that the insurers shall waive all rights of
subrogation that may arise by contract or at law against CUSTOMER and/or
its Related Participants. PROVIDER shall cause the insurance carriers
selected to provide third party liability insurance to arrange for
reinsurance by reputable international reinsurance companies acceptable to
CUSTOMER domiciled and doing business outside the Russian
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Federation and the Commonwealth of Independent States with appropriate
cut-through clauses acceptable to CUSTOMER to secure direct dealings with
and claims payments by the reinsurance companies. The terms and conditions
of the insurance policy and the reinsurance arrangements shall be subject
to CUSTOMER's review and approval.
12.2 The third party liability insurance referred to in Paragraph 12.1 will
attach upon the earlier of (i) delivery of the CUSTOMER Spacecraft(s) to
PROVIDER; or (ii) the entry of the CUSTOMER Spacecraft(s) into Russia, and
shall extend through thirty (30) days after physical separation of the
CUSTOMER Spacecraft(s) from the Launch Vehicle, or twelve (12) months
after Launch if physical separation of the CUSTOMER Spacecraft(s) from the
Launch Vehicle does not occur.
Article 13: Insurance Support
13.1 If CUSTOMER so requests, PROVIDER shall, at its own expense, assist
CUSTOMER in obtaining a policy of launch and/or in-orbit insurance from a
commercial insurer of CUSTOMER's choosing, the cost of said policy to be
paid by CUSTOMER, naming CUSTOMER as insured. Such assistance shall
include attending underwriting presentations and furnishing information
and materials regarding the Launch Site, Launch Vehicle and the Launch
Services, including access to the Launch Site, if necessary, as needed to
secure such insurance. Travel expenses for SUBCONTRACTOR's Russia
representatives to attend meetings with insurance underwriters in the
United States shall be reimbursed by CUSTOMER with the submission of an
invoice with supporting documentation. Travel expenses for PROVIDER's
United States representatives to attend meetings with insurance
underwriters outside of the United States shall be reimbursed by CUSTOMER
with the submission of an invoice with supporting documentation.
13.2 If CUSTOMER makes any claim under its insurance, PROVIDER agrees to
provide, at its own expense, all relevant and necessary information,
consistent with Russian law, regarding the Launch that may be requested by
CUSTOMER or its insurers to assist in settling any claim, and will provide
access to the Launch Site and other launch facilities, if necessary, for
the purpose of the insurer's investigation of such claim.
Article 14: Allocation of Risks
14.1 Inter-participant Waiver of Liability.
14.1.1 Except as otherwise expressly provided in this LSA, in view of the
particular nature of the services to be performed hereunder,
CUSTOMER and PROVIDER (and PROVIDER shall cause SUBCONTRACTOR to)
irrevocably agree to a no-fault, no-subrogation, inter-participant
waiver of liability pursuant to which each Party agrees to assume
the risk of and to absorb the financial
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and any other consequences, whether direct or indirect, of any
property damage or loss it sustains or for any bodily injury to,
death of, or property damage or loss sustained by its own
employees directly or indirectly arising out of, relating to or
resulting from any and all activities carried out under this LSA,
and each Party further agrees that it will not make any claim or
institute any administrative, arbitrate or judicial proceedings
against the other Party or against the Related Participants of the
other Party, for any such property damage or bodily injury,
including death; provided, however the foregoing inter-participant
waiver will not apply to any damage, loss, bodily injury or death
sustained by a Party that is caused by the other Party's (or its
Related Participants') gross negligence or willful or intentional
misconduct.
14.1.2 Each Party shall take all necessary and reasonable steps to
foreclose all claims for property damage or loss sustained by
their respective Related Participants, or bodily injury to, death
of, or property damage or loss sustained by the employees of each
Party's Related Participants directly or indirectly arising out
of, relating to, or resulting from any and all activities carried
out under this LSA. In furtherance of the foregoing, the Parties
shall require their Related Participants that may suffer any loss
or damage in connection with the performance of this LSA to agree
to be responsible for and to make no claims against the other
Party and its Related Participants for any property damage or loss
they sustain or for any bodily injury to, death of, or property
damage or loss sustained by their own employees directly or
indirectly arising out of, relating to, or resulting from any and
all such activities carried out under this LSA; provided, however,
the foregoing will not apply in the case of the other Party's or
the other Party's Related Participants' gross negligence, or
willful or intentional misconduct.
14.1.3 In the event that any Related Participant of a Party makes any
claim or demand or institutes any proceeding (whether
administrative, arbitrate, judicial or otherwise) against the
other Party or any of the other Party's Related Participants on
account of any loss, damage or bodily injury, including death, or
for any consequences thereof, except in the case of the other
Party's or the other Party's Related Participant's willful or
intentional misconduct or gross negligence, the first Party shall
indemnify, defend, and hold harmless, the other Party and its
Related Participants, as the case may be, from and against such
claim, demand or proceeding, and shall pay all expenses, including
reasonable attorneys' fees, and satisfy all judgments or pay any
settlements that may be incurred by or rendered against such
indemnity arising from such claim, demand or proceeding. This
indemnification obligation shall be in addition to indemnification
obligations otherwise established by this LSA.
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14.1.4 The inter-participant waiver provisions of this Article 14 shall
inure to the benefit of, and be binding upon, the successors and
permitted assigns of each Party.
14.2 Liability for Infringement of Intellectual Property Rights
14.2.1 PROVIDER shall indemnify, defend and hold harmless CUSTOMER and
its Related Participants from and against any and all claims
arising out of or relating to any infringement, or claim of
infringement, of the Intellectual Property rights of a Third
Party, that may result from CUSTOMER's use of PROVIDER'S and
SUBCONTRACTOR's Launch Services and Associated Services,
including, but not limited to, the use of any and all products,
processes, articles of manufacture, supporting equipment and
facilities; and PROVIDER's subcontract with SUBCONTRACTOR shall
contain a similar indemnity in favor of CUSTOMER.
14.2.2 CUSTOMER shall indemnify, defend and hold harmless PROVIDER and
SUBCONTRACTOR from and against any and all claims arising out of
or relating to any infringement, or claim of infringement, of the
Intellectual Property rights of a Third Party, that may result
from CUSTOMER's design, manufacture or operation of the CUSTOMER
Spacecraft or the Ancillary Equipment launched for CUSTOMER by
PROVIDER and/or SUBCONTRACTOR, or by PROVIDER's and/or
SUBCONTRACTOR's compliance with specifications furnished by
CUSTOMER with respect to the Launch Services or the Associated
Services.
14.3 Rights and Obligations
The right to indemnification provided under this Article 14, shall be subject to
the following conditions:
14.3.1 The Party seeking indemnification shall promptly advise the other
Party in writing of the filing of any suit, or of any written or
oral claim against it alleging an infringement of any Third
Party's rights, upon receipt thereof; and shall provide the
indemnifying Party, at its sole cost and expense, with copies of
all relevant documentation;
14.3.2 The Party seeking indemnification shall not make any admission nor
shall it reach a compromise or settlement nor take any steps in a
dispute with any Third Party without the prior written approval of
the other Party, which approval shall not be unreasonably withheld
or delayed;
14.3.3 The indemnifying Party shall have the obligation to defend and/or
settle any claim or suit when not contrary to the governing rules
of procedure, shall pay all reasonable litigation and
administrative costs and expenses (including reasonable attorneys'
fees) incurred in connection with the defense of any such claim or
suit, shall satisfy
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any arbitrate awards or judgments rendered by a court of competent
jurisdiction in such suits, shall help defend the indemnified
Party if asked, and shall make all settlement payments in
connection therewith; and
14.3.4 In the event that PROVIDER and/or SUBCONTRACTOR and CUSTOMER shall
be the subject of the same infringement claim involving both
Paragraphs 14.2.1 and 14.2.2, PROVIDER and/or SUBCONTRACTOR and
CUSTOMER shall jointly assume the defense and shall jointly share
the cost of any judgment, award, settlement, cost or expense on a
pro-rata basis according to their respective share of liability.
In the event of any disagreement with respect to the pro-rata
allocation of any amount referred to in the immediately preceding
sentence, such allocation shall be determined through good faith
negotiation or final judgment of a court of competent
jurisdiction.
14.4 WITHOUT LIMITING THE GENERALITY OF THE INTER-PARTICIPANT WAIVER OF
LIABILITY SET FORTH IN ARTICLE 14, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER AND TO PERSONS CLAIMING BY OR THROUGH SUCH PARTY UNDER
ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR UNDER ANY
OTHER LEGAL OR EQUITABLE THEORY FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST
REVENUES.
Article 15: Rights to Intellectual Property
15.1 Each party acknowledges and agrees that neither the execution nor the
performance by either Party of this LSA shall grant any ownership rights
or any other right, title or interest in, or license to, any Intellectual
Property of the other Party or of the other Party's Related Participants
including, without limitation, any Intellectual Property conceived and
first actually reduced to practice in the course of the performance of
this LSA by such Party, unless such grant is expressly recited in a
separate written document duly executed by or on behalf of the granting
party. Notwithstanding the foregoing sentence, PROVIDER and SUBCONTRACTOR
hereby grant to CUSTOMER title to the Deliverables of this Agreement and
for the duration of its performance under this LSA the right to duplicate,
disclose and use all interface and integration data necessary for
performance of this LSA, subject to Article 17, CONFIDENTIAL DATA.
Article 16: Licenses, Permits and Approvals
16.1 Pursuant to the Convention on Registration of Objects Launched into Outer
Space, when two or more States are the launching state, the states should
agree on which state shall be responsible for the registration. PROVIDER
and CUSTOMER agree to undertake such reasonable actions as are necessary
to enable the Russian Federation to register the Launch Vehicle(s) and to
enable the United States of America to register the Spacecraft(s).
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16.2 PROVIDER shall be responsible for obtaining all necessary government
licenses, permits, approvals and other documentation from the Government
of Russia for the performance of the Launch Services and the Associated
Services.
16.3 CUSTOMER shall be responsible for obtaining all necessary U.S. government
licenses, permits, approvals and other documentation regarding the export
from the United States of technical information and data necessary for the
performance by PROVIDER and/or SUBCONTRACTOR of the Launch Services and
Associated Services regarding the export of the CUSTOMER Spacecraft(s) and
the Ancillary Equipment from its country of origin to the Launch Site.
CUSTOMER shall use reasonable efforts to obtain such licenses, permits or
approvals as soon as possible and PROVIDER and/or SUBCONTRACTOR or their
designee shall, within the prescriptions of applicable law, if requested
by CUSTOMER, participate in the procedures necessary to obtain such
licenses, permits or approvals. PROVIDER and SUBCONTRACTOR shall comply
with any requirements that may be imposed by the government of the country
of origin of the CUSTOMER Spacecraft(s) and Ancillary Equipment so that
CUSTOMER may obtain such licenses, permits or approvals. CUSTOMER shall
inform PROVIDER in writing of any such requirements that require PROVIDER
and/or SUBCONTRACTOR compliance.
16.4 In the event that the necessary U.S. Government license for the export of
the CUSTOMER Spacecraft and Ancillary Equipment for launch from the Launch
Site, despite CUSTOMER's reasonable efforts, is revoked or suspended
and/or CUSTOMER is unable to obtain (or if obtained, is subsequently
revoked or suspended) any other relevant permits or approvals at least
four (4) months prior to the scheduled Launch Date, then the Parties shall
meet to consider if additional actions could be taken to restore such
license and/or to obtain or restore such permits or approvals or if other
solutions are available. If, after considering all reasonable
alternatives, the Parties have exhausted all other courses of action, then
CUSTOMER shall be entitled to terminate this LSA with respect to the
launch of the CUSTOMER Spacecraft and Article 11, EXCUSABLE DELAY, shall
not apply.
16.4.1 If the denial, revocation or suspension of such licenses, permits
or approvals is the result of actions or inaction attributable to
PROVIDER and/or SUBCONTRACTOR or the Russian government, PROVIDER
shall refund to CUSTOMER within sixty (60) days of the date of the
termination notice all payments made by CUSTOMER under this LSA
with respect to the launch of the affected CUSTOMER Spacecraft,
except for the Contract Signing Date milestone payment (Exhibit B)
and any pre-contract payments. For the purpose of this paragraph
16.4.1, any action by the U.S. government to deny or revoke any
CUSTOMER export authorization as a result of an alleged failure of
the Russian government or SUBCONTRACTOR to fully comply with the
requirements of the Missile Technology Control Regime ("MTCR"),
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the START Treaty, any Treaty or other agreement between the
Russian Federation and the United States (including, but not
limited to, Executive Agreements, Memoranda of Understanding and
other agreements between departments or agencies of the Russian
government and U.S. government), the Technology Transfer Control
Plan ("TTCP"), Technology Assistance Agreement ("TAA"), or any
condition or provision of any export license or authorization,
shall be deemed to be the result of actions of PROVIDER.
16.4.2 If the denial of such licenses, permits or approvals is not the
result of actions or inaction attributable to either PROVIDER or
SUBCONTRACTOR or CUSTOMER, PROVIDER shall be entitled to retain as
termination charges all payments made by CUSTOMER until the date
of the termination notice up to the maximum amount of five hundred
thousand United States Dollars (U.S.$500,000) of Exhibit B
payments and if the amounts paid to PROVIDER by CUSTOMER for the
Launch Services so terminated under Exhibit B exceed five hundred
thousand United States Dollars (U.S.$500,000), PROVIDER shall
refund to CUSTOMER within sixty (60) days of the date of the
termination notice all amounts paid in excess of five hundred
thousand United States Dollars (U.S.$500,000).
16.5 Each Party shall be solely responsible for any expenses incurred in
obtaining the licenses, permits, approvals, authorizations, notices and
other documentation such Party is required to obtain under this Article
16, provided that each Party agrees to provide reasonable assistance to
the other Party, at its own expense, in obtaining such licenses, permits,
approvals, authorizations, notices and other documentation.
16.6 PROVIDER shall obtain whatever licenses, permits, approvals or other
documentation from governmental authorities in the Russian Federation and
any other Republic of the C.I.S. that are necessary or appropriate for the
performance by the Parties of this LSA. In the event that such
governmental licenses, permits or approvals are denied or, if granted,
are later withdrawn or canceled at any time during the term of this LSA,
CUSTOMER shall be entitled to terminate this LSA, in whole or in part and
PROVIDER shall refund to CUSTOMER within thirty (30) days of the date of
the termination notice all payments made by CUSTOMER under this LSA for
each Launch that has not been performed (except for the Contract Signing
Date milestone payment and any pre-contract payments) as of the date of
termination and Article 11, EXCUSABLE DELAYS shall not apply.
Article 17: Confidential Data
17.1 In the course of performance of its obligations hereunder, each Party and
its Related Participants may disclose data and information of a technical
and financial nature that is considered to be proprietary and
confidential, including, without limitation, information originally
created by or available only from the
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disclosing Party, its Related Participants or a Third Party with respect
to which the disclosing Party has limited disclosure rights ("Confidential
Data"). Such Confidential Data shall be marked prominently as confidential
or proprietary before its disclosure.
17.2 A Party receiving Confidential Data that has been identified as
confidential or proprietary shall take all reasonable precautions to
prevent its publication or disclosure to any Third Party. Such Party shall
only use the Confidential Data solely for the performance of its
obligations under this LSA. The Parties shall be deemed to have discharged
their entire obligation to maintain confidentiality of Confidential Data
hereunder, if they exercise the same degree of care to preserve and
safeguard the other Party's Confidential Data as they use to preserve and
safeguard their own Confidential Data. A Party may disclose Confidential
Data it receives to its Related Participants to the extent necessary for
the performance of this LSA, provided that such Related Participants first
agree to be bound by the nondisclosure and use restrictions contained
herein.
17.3 Neither Party shall be liable for disclosure or use of any Confidential
Data that is:
17.3.1 In the public domain, by publication or otherwise, at the time of
receipt or that comes into the public domain thereafter through no
act of the receiving Party in breach of this LSA; or
17.3.2 Known to the receiving Party or legally in the receiving Party's
possession before disclosure by the disclosing Party; or
17.3.3 Disclosed with the prior written approval of the disclosing Party;
or
17.3.4 Independently developed by the receiving Party; or
17.3.5 Lawfully disclosed to the receiving Party by a Third Party under
conditions permitting such disclosure; or
17.3.6 Not marked as confidential or proprietary; or
17.3.7 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 before such disclosure and shall take all reasonable
actions to protect the confidentiality of such Confidential Data;
or
17.3.8 Required in connection with the financing of this LSA or of the
CUSTOMER Spacecraft or in connection with the procurement of
insurance or the presentation of any insurance claim, provided any
recipient shall have first agreed to be bound by the nondisclosure
and use restrictions contained herein.
17.4 Upon termination or completion of this LSA, and upon request, each Party
agrees to return all Confidential Data (including all copies thereof)
received from the other Party or provide written certification that all
such Confidential
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Data has been destroyed, except that each Party may retain one legal file
copy thereof. The confidentiality provisions of this Article 17 shall
survive the termination or completion of this LSA for a period of five (5)
years following termination or completion.
17.5 If the Confidential Data disclosed is verbal, such verbal Confidential
Data shall be identified as confidential and proprietary before disclosure
and shall be reduced to writing promptly, but in no event later than
twenty (20) days, properly marked as confidential or proprietary and
delivered to the receiving Party in accordance with this Article 17.
17.6 All right, title and interest in and to all Confidential Data and any
other data or information owned by one Party or its Related Participants
and delivered or disclosed to the other Party or its Related Participants
pursuant to this LSA shall remain exclusively with the delivering or
disclosing Party.
Article 18: Termination
18.1 This LSA and the performance of services hereunder may be terminated for
cause by either Party upon the occurrence of any one of the following
events:
18.1.1 The other Party files a voluntary petition in bankruptcy, makes
a general assignment, arrangement or composition with or for the
benefit of its creditors, suffers or permits the appointment of a
receiver for its business assets, becomes subject to involuntary
proceedings under any bankruptcy or insolvency law (which
proceedings remain pending for more than thirty (30) days), or is
wound up or liquidated;
18.1.2 The other Party breaches any material covenant in this LSA, which
breach remains uncured for a period of time equal to the earlier
to occur of: (a) thirty (30) days following receipt of written
notice of such breach from the non-breaching Party or, (b) five
(5) days following receipt of written notice of such breach from
the non-breaching Party if such breach occurs within thirty (30)
days before Launch, provided that, PROVIDER shall not be required
to perform the Launch if CUSTOMER has not cured the breach of any
material covenant before the Launch and provided further that, if
such breach is not curable using reasonable efforts within the
time periods specified in (a) and (b) of this Paragraph 18.1.2 and
the Launch is not scheduled to occur before such time, such longer
period, not exceeding ninety (90) days, provided the breach can be
cured within such longer period and the breaching Party has
commenced and is diligently proceeding with the cure; or
18.2 If CUSTOMER terminates this LSA pursuant to Paragraph 18.1, it shall be
entitled to claim any amounts previously paid to PROVIDER hereunder in
excess of launches already performed. If PROVIDER terminates this LSA
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pursuant to Paragraph 18.1, it shall be entitled to retain all payments
made by CUSTOMER to PROVIDER hereunder.
18.3 CUSTOMER may terminate this LSA for its own convenience at any time before
Launch, without any further liability to PROVIDER, provided that PROVIDER
shall be entitled to retain all payments made by or due from the CUSTOMER
to PROVIDER under the LSA prior to the date of the termination notice.
18.4 CUSTOMER shall be entitled to cancel a Launch Service and terminate in
whole or in part this LSA for cause upon notice to PROVIDER:
18.4.1 If, within three (3) months before the Launch Date, PROVIDER has
not demonstrated to the satisfaction of CUSTOMER that the Launch
Site facilities and logistic arrangements are adequate, suitable
and satisfactory after inspection and acceptance by CUSTOMER, so
as to permit timely and successful performance of the Launch
Services, or if Launch Site deficiencies are found and PROVIDER
has not corrected such deficiencies within a reasonable time.
CUSTOMER agrees to provide the requirements for facilities and
logistic arrangements twelve (12) months before the Launch Date.
18.4.2 In the event that a single postponement or delay or cumulative
postponements or delays of a Launch by PROVIDER and/or
SUBCONTRACTOR, for reasons other than those listed in Article 11,
EXCUSABLE DELAY, exceed thirty (30) days for any Launch, CUSTOMER
may cancel the Launch Services with respect to such Launch.
18.4.3 In the event PROVIDER and/or SUBCONTRACTOR fails to accomplish a
Milestone Event by its Due Date, if such failure is not cured
within thirty (30) days of receipt of written notice by CUSTOMER
of such failure.
18.4.4 In the event that a single delay or cumulative delays by PROVIDER
and/or SUBCONTRACTOR for reasons listed in Article 11, EXCUSABLE
DELAY, exceed six (6) months for any Launch, CUSTOMER may cancel
the Launch Services with respect to such Launch, in which case
PROVIDER shall reimburse CUSTOMER within thirty (30) days of
written notice by CUSTOMER for all payments made to PROVIDER under
this LSA with respect to such Launch.
18.4.5 In the event of a Launch Failure if, within six (6) months before
the scheduled Launch Date for the Launch or Replacement Launch,
PROVIDER has not demonstrated to the satisfaction of CUSTOMER that
the cause of the Launch Failure has been identified and that
corrective measures have been or are being implemented.
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18.4.6 If PROVIDER fails to fully implement to the satisfaction of
CUSTOMER any corrective measure required to be implemented
pursuant to sub-paragraph 18.4.5 within sixty (60) days prior to
the scheduled Launch Date.
18.4.7 If, within six (6) months prior to the scheduled Launch Date,
CUSTOMER has been unable to obtain launch and/or in-orbit
insurance from underwriters acceptable to CUSTOMER under terms and
conditions which, in the sole discretion of CUSTOMER, are
reasonable, and price which does not exceed the premiums paid by
CUSTOMER for such insurance to date, despite the best efforts of
CUSTOMER and PROVIDER and SUBCONTRACTOR to obtain such insurance,
and PROVIDER or SUBCONTRACTOR has been unable or unwilling to
obtain such insurance for CUSTOMER.
18.4.8 In the event of termination, in whole or in part, under this
Paragraph 18.4, CUSTOMER shall not have any liability to PROVIDER
under this LSA with respect to the portion of this LSA which is
terminated, including, without limitation, any of the payment
obligations under Article 5, PRICES or Article 6, PAYMENT TERMS,
and PROVIDER shall refund to CUSTOMER any amount paid under this
LSA with respect to such terminated portion of this LSA within
thirty (30) days of the date of the termination notice.
18.5 Notwithstanding any provision in this LSA to the contrary, the
termination fees set forth in this Article 18 shall be PROVIDER's sole and
exclusive remedy in the event of CUSTOMER's default hereunder. WITHOUT
LIMITING THE GENERALITY OF THE INTER-PARTICIPANT WAIVER OF LIABILITY SET
FORTH IN ARTICLE 14, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
AND TO PERSONS CLAIMING BY OR THROUGH SUCH PARTY UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY, NEGLIGENCE OR UNDER ANY OTHER LEGAL OR
EQUITABLE THEORY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, OR LOST REVENUES.
18.6 PROVIDER shall provide to CUSTOMER a serialized official government
document, signed by the Russian Space Agency, that guarantees that
SUBCONTRACTOR will perform all of its obligations under this LSA and
Subcontract, and this document will be provided within forty-five (45)
days of the effective date of this LSA. It is understood that this
guarantee is not a financial guarantee.
Article 19: Notices and Language
19.1 All notices and communications between the Parties given under this LSA
shall be in writing and shall be delivered in person or sent by reliable
international air courier, registered mail, postage prepaid or by fax to
the other Party at the
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address listed below or to such other address as shall be given in writing
by either Party to the other in accordance with this Paragraph 19.1:
Notice to CUSTOMER:
Shawn R. Thompson
Director, Contracts
EarthWatch Incorporated
1900 Pike Road
Longmont, CO 80501 94566 USA
Telephone: +1-303-682-4927
Fax: +1-303-682-3848
Notice to PROVIDER:
Lawrence R. Foor
Vice President
United Start Corporation
475 Highland Drive
Madison, AL 35758 USA
Telephone: +1-256-772-6670
Fax: +1-256-772-6694
19.2 All documentation, notices, reports, correspondence and other
communications furnished by one Party to the other under this LSA,
including those required under Exhibits A and B hereto, shall be in the
English language.
Article 20: Coordination and Communications
20.1 CUSTOMER and PROVIDER shall each designate a project coordinator
immediately following the Effective Date of this LSA.
20.2 The project coordinators shall supervise and coordinate the performance of
the Launch Services and Associated Services and the technical commitments
of the respective Parties under this LSA.
20.3 The project coordinators shall have sufficient powers to be able to settle
any technical issues that may arise during the performance of this LSA as
well as any daily administration issues.
20.4 Either Party may replace its project coordinator by prior written notice
to the other Party, signed by an authorized representative, indicating the
effective date of designation of the new project coordinator.
20.5 The project coordinators shall not be authorized to direct work contrary
to the requirements of or to make modifications to this LSA. Modifications
to this LSA shall only be made in accordance with Article 21, AMENDMENTS.
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Article 21: Amendments
21.1 This LSA may be amended only in writing, signed by the following duly
authorized representatives of both Parties.
For CUSTOMER:
Herbert F. Satterlee, III Chief Executive and Officer, President,
Walter S. Scott, Chief Technical Officer or
Shawn Thompson, Director of Contracts.
For PROVIDER:
Lawrence R. Foor, Vice President
Article 22: Assignment
22.1 As CUSTOMER is contracting for the unique services of PROVIDER, this LSA
shall not be transferred or assigned by PROVIDER without the prior written
consent of CUSTOMER, except that PROVIDER may transfer or assign its
rights and obligations under this LSA to a Third Party or to a wholly
owned subsidiary of such Party pursuant to any merger, sale of all or
substantially all assets, or other corporate reorganization. CUSTOMER's
consent to such assignment or delegation under this Article 22 shall not
be unreasonably withheld and shall be provided in a timely manner.
22.2 This LSA shall not be transferred or assigned by CUSTOMER without the
prior written consent of PROVIDER, except that CUSTOMER may transfer or
assign its rights under this LSA to a wholly owned subsidiary, or to a
Third Party pursuant to any merger, sale of all or substantially all
assets, or other corporate reorganization. Where PROVIDER's consent to
such assignment or delegation is required under this Article 22, it shall
not be unreasonably withheld and shall be provided in a timely manner.
22.3 Any purported assignment or transfer in violation of this Article 22
shall be null and void and of no legal effect.
22.4 This LSA shall be binding on and inure to the benefit of any successor
and permitted assignee.
Article 23: Settlement and Resolution of Disputes
23.1 Any dispute or controversy arising out of, in connection with, or in
relation to this agreement will be determined and settled on an informal
basis if possible. To that end, each party shall have the right to meet
with senior management of the other party in an attempt to resolve any
dispute. If the dispute remains unresolved and after providing a 30-day
notice of its intentions, either party may request resolution by
arbitration. Arbitration shall be held in Longmont Colorado in accordance
with rules then prevailing of the American Arbitration
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Association ("AAA"). Arbitration may be conducted by one arbitrator by the
mutual agreement of the parties or by three arbitrators if the parties
cannot so agree, with each party choosing one arbitrator and the third
selected in accordance with the rules of the AAA. Any award rendered
therein will be conveyed in a written, reasoned opinion and shall be final
and binding upon the PROVIDER and CUSTOMER and may be entered thereon in
the District Court of the State of Colorado for the County of Boulder.
23.2 Reserved
23.3 Reserved.
23.4 The cost of any Arbitration conducted pursuant to this Article 23 shall
be borne equally by the Parties, provided; however, that each Party shall
pay its own attorney's fees.
23.5 The arbitration proceedings and all communications relating thereto
shall be in the English language.
23.6 The arbitration shall be final and binding upon the Parties and neither
Party shall seek recourse to a law court or other authorities to appeal or
request revision of the award. Judgment upon the award returned by the
arbitrators may be entered in any court having jurisdiction.
23.7 During the period in which resolution of the dispute is pending, PROVIDER
may, but shall not be required to, continue to perform its obligations
under this LSA, unless otherwise instructed by CUSTOMER in writing.
23.8 Under no circumstances may the result of the Arbitration award exceed any
limitation of liability contained in the LSA or contravene International
Law, Agreement or Treaty.
23.9 Notwithstanding the foregoing, the Parties agree that, upon application
thereto, a court of competent jurisdiction may issue (A) preliminary
injunctive relief to preserve the status quo or otherwise enforce or
provide for the effectiveness of the terms and conditions of this Contract
pending the outcome of the arbitration hereunder; or (B) permanent
injunctive relief to require compliance with the arbitration award.
Article 24: Applicable Law
24.1 This LSA shall be governed by, subject to and construed in accordance with
the laws of the State of Delaware, United States of America, without
giving effect to the conflicts of laws provisions thereof.
24.2 The Parties hereby irrevocably consent to and submit to the exclusive
jurisdiction of the federal and state courts located in the State of
Colorado, and any action, suit or proceeding under this LSA may be brought
by the Parties in any federal or state court of competent jurisdiction
established or sitting in the State of Colorado. Furthermore, the Parties
shall not raise, and hereby waive, any defenses based upon improper venue,
inconvenience of the forum, lack of
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personal jurisdiction, sufficiency of service of process or the like in
any such action, suit or proceeding brought in the State of Colorado.
24.3 To the extent that PROVIDER or any of its property is or becomes entitled
at any time to assert the claim or defense of sovereign immunity in any
legal action, suit or proceeding (including, but not limited to actions,
suits or proceedings brought in the State of Colorado), or in connection
with any other legal process in any jurisdiction, PROVIDER for itself and
its property hereby irrevocably and unconditionally waives, and agrees not
to plead or claim, the claim or defense of sovereign immunity (including,
but not limited to, any immunity provided under the Foreign Sovereign
Immunities Act of 1976, 28 U.S.C. (S) 1602 et seq. of the United States of
America) with respect to its obligations, liabilities, or any other matter
arising under or relating to this LSA.
24.4 The Parties agree that the United Nations Convention for the International
Sales of Goods shall not be applicable to this LSA.
Article 25: Waiver of Breach
25.1 The failure of a Party at any time to require performance by the other
Party of any provision of this LSA shall in no way affect its right to
require such performance at any time thereafter. The waiver by a Party of
a breach of any provision of this LSA shall not constitute a waiver of any
succeeding breach of the same or any other provision, nor shall it
constitute a waiver of the provision itself.
Article 26: Entire Agreement
26.1 This LSA, including all its Exhibits, constitutes the entire understanding
and agreement between the Parties and supersedes all prior or
contemporaneous correspondence, representations, proposals, negotiations,
understandings or agreements of the Parties, whether oral or written in
connection with the subject matter hereof. The Parties hereby acknowledge
that there are no collateral agreements between them with respect to the
subject matter hereof.
Article 27: Public Release of Information
27.1 Each Party shall obtain the written approval of the other Party
concerning the content and timing of news releases, articles, brochures,
advertisements, prepared speeches, and other information releases to be
made by the Party of any of its Associates concerning this LSA or the
Launch Services performed or to be performed hereunder. Such approval
shall not be unreasonably withheld.
Article 28: Provider/Subcontractor Assistance Regarding Technical Security
28.1 PROVIDER covenants that it will not, at any time, seek any technology
associated with CUSTOMER'S Spacecraft and the Ancillary Equipment; and it
will cause SUBCONTRACTOR to not, at any time, seek such technology.
PROVIDER agrees that it shall cause SUBCONTRACTOR to strictly comply
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with any agreement on spacecraft technology safeguards among the
Governments of the United States of America and the Russian Federation and
any other Republic of the C.I.S. Upon arrival of CUSTOMER's Spacecraft at
the port of entry in the territory of the Russian Federation or any other
Republic of the C.I.S., PROVIDER shall use its Best Efforts to provide, or
to procure through other competent organizations, reasonable security
measures, including but not limited to the following:
28.1.1 PROVIDER will assist CUSTOMER in obtaining exemption for
CUSTOMER's Spacecraft and Ancillary Equipment, to the extent
possible, from examination by customs authorities when any
CUSTOMER Spacecraft and Ancillary Equipment enter the territory of
the Russian Federation or any other Republic of the C.I.S.,
provided CUSTOMER provides written assurances or other
documentation that the CUSTOMER Spacecraft and Ancillary Equipment
comply with all relevant requirements of the customs authorities.
28.1.2 CUSTOMER will be permitted to dispatch personnel to oversee and
protect CUSTOMER Spacecraft after their entry into the territory
of the Russian Federation and any other Republic of the C.I.S.,
during their transport to the Launch Site, and while they are
present at the Launch Site. If requested by CUSTOMER, PROVIDER
will assign personnel to assist in such supervision and
protection.
28.1.3 The testing and processing of CUSTOMER Spacecraft at the Launch
Site will be conducted entirely by CUSTOMER's technical personnel
at suitable facilities provided by SUBCONTRACTOR. If requested,
PROVIDER will assist with such testing and processing.
28.1.4 In the event any CUSTOMER Spacecraft or Ancillary Equipment are
transported out of the territory of the Russian Federation or any
other Republic of the C.I.S. PROVIDER shall assist with any
governmental approvals required for export and assign personnel to
assist in overseeing and protecting such CUSTOMER Spacecraft and
Ancillary Equipment.
28.2 PROVIDER will provide reasonable assistance to CUSTOMER and its Related
Participants with the administrative arrangements necessary in connection
with the transportation of CUSTOMER Spacecraft from their entry into the
territory of the Russian Federation and any other Republic of the C.I.S.
to the Launch Site, the storage of CUSTOMER Spacecraft (if required) and
their possible return, and the entry, exit and stay of CUSTOMER's and its
Related Participants' personnel in the territory of the Russian Federation
and any other Republic of the C.I.S., during the performance of this LSA.
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Article 29: Access To Work In Progress And Data
29.1 Work in progress under this LSA and technical data and documentation,
including design and test data, that is directly related to this LSA and
reasonably necessary for CUSTOMER to ascertain PROVIDER's performance
under this LSA and SUBCONTRACTOR's performance under the Subcontract are
subject to reasonable verification and confirmation. To the extent that
such verification and confirmation by CUSTOMER and its representatives is
precluded by existing National Security limitations, PROVIDER shall
propose a Russian Government Agency to act as independent evaluator of
progress under this LSA and the Subcontract. CUSTOMER will rely on the
results of these evaluations. This proposed Agency shall be identified
within 45 days of the effective date of this contract. The Agency shall
perform such verifications and confirmations which are requested in a
specific and timely manner as required by the LSA. PROVIDER shall make
available all other work, data and facilities not restricted by National
Security of Russian Federation at reasonable advance notice and convenient
time. Without affecting SUBCONTRACTOR's obligation under National
Security, other provisions of this LSA, and subject to PROVIDER's and/or
SUBCONTRACTOR's rights in data under Article 15, RIGHTS TO INTELLECTUAL
PROPERTY, herein, PROVIDER shall on reasonable request by CUSTOMER
deliver, without affecting PROVIDER's or SUBCONTRACTOR's obligation under
National Security, copies of relevant design and test data and other
technical data, excluding financial data, to CUSTOMER at any time during
this LSA.
29.2 Consistent with 29.1, PROVIDER agrees to provide reasonable facilities and
equipment to representatives of CUSTOMER, or the agreed Russian Agency, to
the extent necessary to provide access to and examination of work in
progress and technical data and documentation.
29.3 Consistent with 29.1, PROVIDER shall undertake to obtain access by
CUSTOMER, or the agreed Russian Agency, accompanied by SUBCONTRACTOR's
technical manager or its representative, to major subcontractors'
facilities, work in progress and technical data related to this LSA,
subject to reasonable coordination by SUBCONTRACTOR with the affected
major subcontractors and reasonable advance notice to PROVIDER and/or
SUBCONTRACTOR.
Article 30: Order Of Precedence
30.1 All Exhibits and documents referred to herein are hereby incorporated into
this LSA and shall form an integral part hereof. The Articles of this LSA
and all Exhibits hereto shall be read so as to be consistent to the extent
practicable. In the event of any ambiguity, conflict or inconsistency
among or between the various parts of this LSA, such ambiguity, conflict
or inconsistency shall be resolved by giving precedence to the documents
in the order set forth below:
1. Launch Services Agreement
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2. Exhibit A, Statement of Work, dated April 1, 1999
3. Exhibit B, Payment Schedule, dated April 1, 1999
4. Exhibit C, Reserved
5. Exhibit D, Launch Vehicle Definitions, dated March 25, 1999
6. Any documents incorporated into the LSA or Exhibits A or B by
reference.
Article 31: General
31.1 All rights and remedies hereunder shall be cumulative and may be exercised
singly or concurrently. If any provision of this LSA is found to be
invalid, or unenforceable, it shall not affect any other provision of this
LSA and the invalid or unenforceable provision shall be replaced with a
provision consistent with the original intent of the parties. The
following provisions shall survive the expiration or termination of this
Contract.
Article 32: Effective Date
32.1 This Agreement shall become effective upon signature, by both Parties and
satisfaction of the conditions of Article 34, provided that CUSTOMER may
cancel and rescind this LSA at any time prior to its payment to PROVIDER
of the complete amount of the ATP payment, Milestone 5 in Schedule B.
Article 33: Milestone Events
33.1 Certain events in Exhibit B are designated as Milestone Events. This
paragraph governs the procedure by which a Milestone Event is judged to
have been successfully completed.
33.1.1 In the event that a Milestone Event involves the delivery of
services, material, or documentation to CUSTOMER (a
"Deliverable"), within ten (10) business days following delivery
of the Deliverable, CUSTOMER will notify PROVIDER in writing of
its acceptance or rejection of the Deliverable.
(i) If CUSTOMER fails to provide written notification within this
period, the Deliverable is considered to be accepted. Acceptance
or rejection of a Deliverable shall be at CUSTOMER'S discretion;
however, CUSTOMER shall not unreasonably withhold acceptance of a
Deliverable.
(ii) If CUSTOMER rejects the Deliverable, then the written
notification of rejection shall state the reason for the rejection
and specify the corrective action required in order to make the
Deliverable acceptable. PROVIDER shall resubmit the Deliverable to
CUSTOMER within thirty (30) days of having received the notice of
rejection. Upon receipt of the Deliverable, CUSTOMER shall again
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have ten (10) business days to accept or reject the Deliverable.
If CUSTOMER rejects Deliverable three times then any dispute
relating thereto is subject to resolution in accordance with
Article 23, SETTLEMENT OF DISPUTES, hereof.
(iii) A Milestone Event of this type is considered to have been
successfully completed when all of the Deliverables identified for
that Milestone Event have been accepted by CUSTOMER.
33.1.2 In the event that a Milestone Event involves completion by
PROVIDER or SUBCONTRACTOR of a certain manufacturing or testing
step or procedure, then PROVIDER shall provide or cause
SUBCONTRACTOR to provide CUSTOMER with written notification
fourteen (14) business days prior to the date on which the
manufacturing event is expected to be completed, or the testing
step or procedure is expected to be performed. This notification
shall specify whether the Milestone Event can be witnessed by a
CUSTOMER representative, or if the National Security provisions of
29.1 apply and the Milestone Event must be witnessed by a Russian
Agency official.
(i) A CUSTOMER representative, or the Agency representative as
identified in 29.1, shall witness the completion of the Milestone
Event. The Milestone Event is considered to have been successfully
completed when either (a) a CUSTOMER representative witnesses the
successful completion of the Milestone Event, and so certifies in
writing to PROVIDER at the time of the Milestone Event, such
certification not to be unreasonably withheld, or (b) upon receipt
by CUSTOMER of a written certification by the Russian Agency
representative that the Milestone Event has been successfully
completed, in the event that CUSTOMER has been precluded from
sending a representative to witness the Milestone Event by
existing Russian National Security limitations pursuant to 29.1.
(ii) If CUSTOMER elects not to send a representative to witness
the Milestone Event, despite receiving notification that a
CUSTOMER representative is permitted to witness the Milestone
Event, then the Milestone Event shall be considered to have been
satisfied when successfully completed.
(iii) If PROVIDER and/or SUBCONTRACTOR notifies CUSTOMER that it
may send a representative to witness the Milestone Event, and the
CUSTOMER representative is not permitted, or unable, to witness
the Milestone Event, despite the Best Efforts of the CUSTOMER
representative, then the Milestone Event shall not be considered
to be complete until such time as the CUSTOMER representative is
able to witness the Milestone Event.
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(iv) If PROVIDER and/or SUBCONTRACTOR notifies CUSTOMER that it
may not send a representative to witness the Milestone Event, and
the Milestone is not witnessed by the Russian Agency
representative, or a written certification by such representative
is not received by CUSTOMER, then the Milestone Event shall not be
considered complete until such time as it can be either witnessed
by a CUSTOMER representative or by a Russian Agency representative
pursuant to Paragraph 29.1 and (i) above.
Article 34: Effectiveness of Agreement
This Agreement becomes effective when three conditions have been satisfied: (1)
the execution of the Agreement by both parties, (2) approval of the Agreement by
the EarthWatch Board of Directors, and (3) approval of the Agreement by the
United Start Board of Directors. Upon execution of the Agreement, the first
milestone payment can be invoiced in accordance with the terms of the Agreement.
The remaining payments will be due according to the milestone schedule following
the approval of the EarthWatch Board of Directors. In the event that the
EarthWatch Board of Directors does not approve the Agreement, and suitable
changes cannot be made to make it acceptable, then the Agreement will be
considered terminated and EarthWatch's entire obligation will not exceed the
amount of the specify which payment of Exhibit B.
IN WITNESS WHEREOF, the Parties have executed this LSA by their duly
authorized representatives in duplicate originals.
PROVIDER CUSTOMER
By: /s/ Larry Foor By: /s/ Herbert F. Satterlee III
----------------------- ----------------------------
Name: Larry Foor Name: Herbert F. Satterlee III
Title: Vice President Title: President and Chief Executive
Officer
32
<PAGE>
EXHIBIT A - Statement of Work
[The Company has not filed this Exhibit with the Commission because it contains
voluminous and highly technical data that the Company believes is not material
to investors.]
<PAGE>
EXHIBIT D - Launch Vehicle Related Definitions
Launch: issuance of the launch command from the launch sequencer, followed by
flow of fuel or oxidizer into any of the first stage engines of the Launch
Vehicle that has been integrated with the Spacecraft supplied by EARTHWATCH. The
intent of this definition is that a Launch shall be considered to occur at the
"point of no return", i.e., the earliest point in the launch sequence when it is
no longer possible to prevent either lift-off or destruction of the Launch
Vehicle or Satellite.
Launch Attempt: the pre-launch and launch operations of the Launch Vehicle that
has been integrated with the Spacecraft supplied by EARTHWATCH, up to the point
of, but not including, launch.
Launch Day: a calendar day established for the Launch pursuant to this LSA
within which the Launch Window is open.
Launch Failure: as defined in Article 9 of this LSA.
Launch Period: as defined in Article 4.3 of this LSA.
Launch Services: those services to be performed by PROVIDER as specified in
Article 2, Services To Be Provided By Provider, and in the Statement of Work,
Exhibit A hereto.
Launch Site: the physical location at Plesetsk, Russia or Kapustin Yar, Russia,
for the Launch, including the associated installations and equipment used by
PROVIDER in connection with the Launch Services and Associated Services.
Launch Success: as defined in Paragraph 9.1 of this LSA.
Launch Technical Specification: as set forth in the Spacecraft to Launch Vehicle
ICD or the Statement of Work, Exhibit A hereto.
Launch Time: the time within the Launch Window when the Lift-off of the Launch
Vehicle is scheduled to take place and, if Lift-off occurs, the time of Lift-
off, defined in hours, minutes and seconds in Universal Time (UTC).
Launch Vehicle: the COSMOS launch vehicle (11K65M) as defined in the COSMOS SL-8
Launch Vehicle Users Guide, dated January 1997, Revision 1, which is to be used
to perform the Launch Services for the CUSTOMER Spacecraft pursuant to the terms
of this LSA.
Launch Window: a time period during the Launch Day within which the Launch may
take place, as derived from the Launch Technical Specification.
Lift-off: the moment of intentional first motion of the Launch Vehicle that has
been integrated with the Spacecraft supplied by CUSTOMER.
<PAGE>
Exhibit D (LV Related Definitions)
EWI to United Start LSA
6/15/98
EXHIBIT D - Launch Vehicle Related Definitions
Launch: issuance of the launch command from the launch sequencer, followed by
flow of fuel or oxidizer into any of the first stage engines of the Launch
Vehicle that has been integrated with the Spacecraft supplied by EARTHWATCH. The
intent of this definition is that a Launch shall be considered to occur at the
"point of no return", i.e., the earliest point in the launch sequence when it is
no longer possible to prevent either lift-off or destruction of the Launch
Vehicle or Satellite.
Launch Attempt: the pre-launch and launch operations of the Launch Vehicle that
has been integrated with the Spacecraft supplied by EARTHWATCH, up to the point
of, but not including, launch.
Launch Day: a calendar day established for the Launch pursuant to this LSA
within which the Launch Window is open.
Launch Failure: as defined in Article 9 of this LSA.
Launch Period: as defined in Article 4.3 of this LSA.
Launch Services: those services to be performed by PROVIDER as specified in
Article 2, Services To Be Provided By Provider, and in the Statement of Work,
Exhibit A hereto.
Launch Site: the physical location at Plesetsk, Russia or Kapustin Yar, Russia,
for the Launch, including the associated installations and equipment used by
PROVIDER in connection with the Launch Services and Associated Services.
Launch Success: as defined in Paragraph 9.1 of this LSA.
Launch Technical Specification: as set forth in the Spacecraft to Launch Vehicle
ICD or the Statement of Work, Exhibit A hereto.
Launch Time: the time within the Launch Window when the Lift-off of the Launch
Vehicle is scheduled to take place and, if Lift-off occurs, the time of Lift-
off, defined in hours, minutes and seconds in Universal Time (UTC).
Launch Vehicle: the COSMOS launch vehicle (11K65M) as defined in the COSMOS SL-8
Launch Vehicle Users Guide, dated January 1997, Revision 1, which is to be used
to perform the Launch Services for the CUSTOMER Spacecraft pursuant to the terms
of this LSA.
Launch Window: a time period during the Launch Day within which the Launch may
take place, as derived from the Launch Technical Specification.
Lift-off: the moment of intentional first motion of the Launch Vehicle that has
been integrated with the Spacecraft supplied by CUSTOMER.
Page 1
<PAGE>
AMENDMENT
TO THE
LAUNCH SERVICES AGREEMENT
BETWEEN EARTHWATCH INCORPORATED
AND
UNITED START CORPORATION
FOR THE LAUNCH OF
EARTHWATCH REMOTE SENSING SPACECRAFT
This Amendment I amends the Agreement dated April 1, 1999, and acknowledges the
latest revisions to the following documents:
-Launch Services Agreement, Revision 9, dated June 3, 1999.
-Exhibit A Statement of Work, Revision 7, dated June 1, 1999.
-Exhibit B Payment Schedule, Revision 6, dated April 1, 1999.
The Amendment conditionally exercises an Optional Launch for QuickBird 2, to a
sun-synchronous, 600 km circular orbit, in accordance with a paragraph 2.5 of
this Launch Services Agreement. All other requirement and interfaces as defined
in the Launch Vehicle to Spacecraft Interface Control Document for EarthWatch
QuickBird Spacecraft to Cosmos-3M Launch Vehicle Document (reference Exhibit A)
apply to this launch.
This amendment is conditioned upon (1) adequate verification that the Cosmos-3M
launch vehicle has sufficient performance to inject the QuickBird 2 spacecraft
into a sun-synchronous, 600 km circular orbit and (2) upon formal approval of
the necessary launch trajectory by the Russian Government. In the event that
either of these conditions are not met within 6 months of the effective date of
this Amendment then all funds provided for this Optional launch shall be applied
to the next payment due for the QuickBird 1 launch and this amendment shall be
considered terminated. Further, in the event that modifications to the exist
Cosmos 3-M design are necessary to meet the performance requirements, such
modification must be accepted by EarthWatch.
For this QuickBird 2 launch only, Exhibit B, Table B-2 is modified as follows:
(Please see Attachment 1 to this Amendment 1).
<PAGE>
Amendment 1 to LSA
IN WITNESS WHEREOF, the Parties have executed this Amendment 1 to the LSA by
their duly authorized representatives in duplicate originals.
PROVIDER CUSTOMER
By: ------------------- By: -------------------------
Name: Larry Foor Name: Herbert F. Satterlee III
Title: Vice President Title: President and Chief Executive Officer
By: -------------------
Name: Sergei Zinchenko
Title: Director General
2
<PAGE>
Amendment 1 to LSA
Exhibit B - Payment Schedule
1. The price for each Launch shall be $14.0 million US dollars for the first
launch and for replacement or option launches. The proportion of this price
that is cash, and the proportion that is archival data, shall be determined
based on the first-requested Launch Date as defined in Article 4.2 of the LSA
and the milestones as defined in Tables B-1 and B-2. If the Launch Date is
on or before 30 November 2001, the cash portion of the price shall be
$10,000,000 for the first launch and for replacement or option launches.
2. For the first launch, the initial payment is to make this LSA effective. The
succeeding payments are defined in Table B-1. The final payment is made
following the Launch. The payment amounts are shown based on a cash portion
of the launch price of $10,000,000. If the cash portion of the launch price
is greater than $10,000,000 as described above, then the amounts of all cash
payments except for the first payment shall be increased at the next
occurring milestone in a proportional fashion such that the sum of all cash
payments will equal the cash portion of the launch price. The first payment
shall remain at $100,000 in all cases.
3. The archival data payments shall be as defined in Tables B-1 and B-2 less any
increases in the cash payments per the above formula. In the following
tables, the column titled "Projected Completion Date" shows the dates by
which it is anticipated that the corresponding Milestone Events will be
completed. However, payment for a given Milestone Event shall only be made
after the Milestone Event is considered to be complete, in accordance with
Article 29, paragraph 29.4 of this LSA.
4. Certain milestones in the tables below are referenced against the
"Establishment Date", which is the date on which agreement is made on the
initial Launch Date in accordance with Article 4.2 of this LSA. Payment for
these milestones is due upon the later of the completion of the milestone and
the projected completion date shown for that milestone. Unless otherwise
noted below, payment is due within 10 business days following receipt by
EarthWatch of the invoice for milestone completion.
5. The nomenclature Contract Signing Date (CD+n), Establishment Date (ED+n), or
Launch Date (LD - n or +n) months means on the same day of the month as CD,
ED or LD, n months earlier or later. For example, if ED is 1 December 1998,
then ED+3 months will be 1 March 1999.
6. CUSTOMER insurance obtained under LSA Article 13 shall assign directly to the
PROVIDER an amount in United States Dollars equal to all payments due
PROVIDER at the time of launch and after launch.
7. For replacement and option launches, the initial payment in Table B-2 is to
make this LSA effective for such a launch. The succeeding payments are
defined in Table B-2. The final payment is made following the Launch. The
payment amounts are shown based on a cash portion of the launch price of
$10,000,000. If the cash portion of the launch price is greater than
$10,000,000 as described in paragraph 1 above, then the amounts of all cash
payments except for the first payment shall be increased at the
3
<PAGE>
Amendment 1 to LSA
next occurring milestone in a proportional fashion such that the sum of all
cash payments will equal the cash portion of the launch price. The first
payment shall remain at $100,000 in all cases. Should additional milestones
need to be repeated they shall be negotiated and added to Table B-2 as they
are identified.
8. Licenses, Permits and Approvals in accordance with Article 16 of this LSA
shall occur on or before Milestone 9 for the first launch and on or before
Milestone 2 for optional or replacement launches. If such approval and
licensing does not occur by these milestones EarthWatch, at its sole option
may delay further payments until such approval and licensing does occur.
4
<PAGE>
Amendment 1 to LSA
TABLE B-1 FIRST LAUNCH MILESTONE PAYMENT SCHEDULE
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Milestone Amount Method Due Date - Milestone Event Projected
Number of Completion Date
Payment
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 $ 100,000 Cash PRE-CONTRACT PAYMENT Pre-CD
-----------------------------------------------------------------------------------------------------------
2 $ 100,000 Cash PRE-CONTRACT PAYMENTS Pre-CD
-----------------------------------------------------------------------------------------------------------
3 $ 200,000 Cash Contract Signing Date (CD) CD
-----------------------------------------------------------------------------------------------------------
4 $ 200,000 Cash Delivery of early engineering analyses (SOW CD + 2 mos
paragraph 3)
-----------------------------------------------------------------------------------------------------------
5 $1,600,000 Cash Authority to Proceed (ATP) from EarthWatch ATP
dependent upon EarthWatch receiving its Export
License and TAA approval; Authority to Proceed
(ATP) shall be at least 7 months before launch
-----------------------------------------------------------------------------------------------------------
6 $ 850,000 Cash Submission of the Range Operations Plan (SOW ATP + I mo
para 3.2) and the Logistics and Transportation
Plan (SOW para 3.6); mutual agreement and
signoff of the Spacecraft/Launch Vehicle ICD
addressing all significant issues
-----------------------------------------------------------------------------------------------------------
7 $1,000,000 Cash Submission of the Preliminary Mission Analyses ATP + 2 mos
(SOW para 3.1.2),of inputs to the Ground
Security Plan (SOW para. 3.1.4.5), and the
Facilities Plan (SOW para 3.1.4)
-----------------------------------------------------------------------------------------------------------
8 $ 800,000 Cash Submission of preliminary Coupled Loads ATP + 3 mos
Analysis
(5 mos after receipt of spacecraft structural
model)
(SOW para 3.1.2.5)
-----------------------------------------------------------------------------------------------------------
9 $1,250,000 Cash Establishment of a Firm launch date (LD) Establishment
between EarthWatch and the Provider, The Date (ED)
Establishment Date (ED) shall be at least 6
months before the launch
-----------------------------------------------------------------------------------------------------------
10 $ 600,000 Cash Final Mission Analyses (SOW para. 3.1.2); No later than
Final Coupled Loads Analysis (SOW para LD - 4 mos
3.1.2.5)
-----------------------------------------------------------------------------------------------------------
11 $ 800,000 Cash Pathfinder Arrival at Launch Site LD - 2 mos
-----------------------------------------------------------------------------------------------------------
12 $ 500,000 Cash Spacecraft and Launch Vehicle Arrival at Launch LD- I mo
Site
-----------------------------------------------------------------------------------------------------------
13 $2,000,000 Cash Launch LD + 2 mos
-----------------------------------------------------------------------------------------------------------
$4,000,000 Archival Valued at CUSTOMER's North American price list
Data less standard North American distributor
discounts subject to standard data sales terms and
conditions. The amount of this Archival Data
-----------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
Amendment 1 to LSA
<TABLE>
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------
payment shall be adjusted per paragraph 3 of this
exhibit such that the total price of a launch is
$14,000,000.
-----------------------------------------------------------------------------------------------------------
$14,000,000 TOTAL FIXED PRICE FOR FIRST LAUNCH
before 30 November 2001
-----------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
Amendment 1 to LSA
TABLE B-2
REPLACEMENT OR OPTION LAUNCH MILESTONE PAYMENT SCHEDULE
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Method of Projected
Amount Payment Due Date - Milestone Event Completion Date
-----------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <S> <C>
1.a $ 200,000 Cash Contract Signing Date (CD) CD
-----------------------------------------------------------------------------------------------------------------------
1.b $ 400,000 Cash Verification that Cosmos has sufficient NLT CD+6
performance to a sun-synchronous, 600 km orbit
and trajectory approval is granted by the Russian
Government
-----------------------------------------------------------------------------------------------------------------------
2 $ 3,100,000 Cash Submission of Program Schedule per paragraph 4 Milestone 1b+1 mo.
of SOW
-----------------------------------------------------------------------------------------------------------------------
3 $ 2,250,000 Cash Establishment of a Firm launch date (LD) Establishment Date
between EarthWatch and the Provider. The (ED)
Establishment Date (ED) shall be at least 8
months before the launch.
-----------------------------------------------------------------------------------------------------------------------
4 $ 1,100,000 Cash Final Mission Analyses (SOW para 3.1.2): Final Not later than LD -
Coupled Loads Analysis (SOW para 3.1.2.5) 4 months
-----------------------------------------------------------------------------------------------------------------------
5 $ 550,000 Cash Rocket Arrival at the Launch Site LD - 3 mos
-----------------------------------------------------------------------------------------------------------------------
6 $ 550,000 Cash Path Finder Arrival at Launch Site LD - 2 mos
-----------------------------------------------------------------------------------------------------------------------
7 $ 350,000 Cash Spacecraft Arrival at Launch Site LD - 1 mos
-----------------------------------------------------------------------------------------------------------------------
8 $ 1,500,000 Cash Launch LD
-----------------------------------------------------------------------------------------------------------------------
$10,000,000 TOTAL CASH FOR FIXED PRICE TASKS for a
launch before 30 November 2001
-----------------------------------------------------------------------------------------------------------------------
$ 4,000,000 Archival Valued at CUSTOMER'S North American price list
Data less standard North American distributor
discounts subject to standard data sales terms and
conditions. The amount of this Archival Data
payment shall be adjusted per paragraph 3 of this
exhibit such that the total price of a launch is
$14,000,000.
-----------------------------------------------------------------------------------------------------------------------
. $14,000,000 TOTAL FIXED PRICE FOR A
REPLACEMENT/OPTION LAUNCH before
30 November 2001
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
Amendment 2 to LSA Agreement dated April 1, 1999
AMENDMENT 2
TO THE
LAUNCH SERVICES AGREEMENT
BETWEEN EARTHWATCH INCORPORATED
AND
UNITED START CORPORATION
FOR THE LAUNCH OF
EARTHWATCH REMOTE SENSING SPACECRAFT
This Amendment 2 amends the Agreement dated April 1, 1999 (Amendment 1 was
issued but never signed), and acknowledges the latest revisions to the following
documents:
-Launch Services Agreement, Revision 9, dated June 3, 1999.
-Exhibit A Statement of Work, Revision 7, dated June 1, 1999.
-Exhibit B Payment Schedule, Revision 6, dated April 1,1999.
This Amendment 2 is issued to add a Special Clause because of an amendment (3)
to the contract number 9905-0144 with Assured Space Access Incorporated (ASAI).
The Special Clause is being added to this contract to specify that neither ASAI
nor United Start shall be entitled to any adjustment under their respective
contracts if the Fairing is not delivered to the Launch Services Provider on
time or does not meet the various launch vehicle of spacecraft requirements.
1.0 Modification: Add the following paragraph:
Article 35: Special Clause
In the event that the Fairing is delivered late to the Launch Services Provider
for any reason or does not meet the various launch vehicle or spacecraft
requirements, neither Assured Space Access Incorporated (ASAI) nor United Start
Corporation shall be entitled to any adjustment to the terms and conditions of
their respective contracts.
All other terms and conditions unchanged by this Amendment 2 remain in fall
force and effect.
1
<PAGE>
Amendment 2 to LSA Agreement dated April 1, 1999
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Parties have executed this Amendment 2 to the LSA by
their duly authorized representatives in duplicate originals.
PROVIDER CUSTOMER
/s/ Larry R. Foor /s/ Shawn Thompson
By:______________________ By:_______________________________
Name: Larry R. Foor For Name: Herbert F. Satterlee III
Title: President Title: President and Chief Executive Officer
2
<PAGE>
AMENDMENT 3
TO THE
LAUNCH SERVICES AGREEMENT
BETWEEN EARTHWATCH INCORPORATED
AND
UNITED START CORPORATION
FOR THE LAUNCH OF
EARTHWATCH REMOTE SENSING SPACECRAFT
This Amendment 3 modifies the Launch Service Agreement executed on 1 April 1999.
The Agreement is between EarthWatch Incorporated and United Start Corporation.
The Launch Services Agreement is amended as noted herein. All other terms not
noted as changed remain in force.
Description:
This Amendment 3 increases the value of the Agreement by $400,000 by a
modification of Exhibit B - Payment Schedule and authorizes a modification of
Exhibit A - the Statement of Work.
Modifications:
Replace the current Exhibit B with a revised Exhibit B dated April 14, 2000.
The revised Exhibit B modifies the title of Table B-2 to delete "or option" and
make Table B-2 applicable only to a replacement launch.
The revised Exhibit B modifies Table B-1 to insert a "Milestone 9a" in the
Amount of "$200,000"; Method of Payment is "Cash"; Due Date - Milestone Event is
"Initiation of Guidance Instrument Modifications"; Projected Completion Date is
"April 2000" and to insert a Milestone 9 b. in the Amount of "$200,000"; Method
of Payment is "Cash"; Due Date - Milestone Event is "Completion of Guidance
Instrument Modifications and Reinstallation/Test in Cosmos"; Projected
Completion Date is "Not Later Than LD-2 mos".
The revised Exhibit B adds a Table B-3 defining price milestone payment schedule
for an optional QB-2 launch to a sun synchronous orbit.
Exhibit A - Statement of Work:
Insert the following after the third sentence in paragraph 3.1.3.
The PROVIDER shall modify two sets of Cosmos guidance instruments (one flight
and one flight spare) for each of the QuickBird 1 and QuickBird 2 launches. The
guidance instruments will be modified such that the fairing release altitude is
not less than 89 km for both launches while achieving the QB1 spacecraft weight
and orbital requirements specified in the ICD. For the QB2 launch, these
guidance modifications will allow the Cosmos to place a spacecraft weighing not
more than 981 kg into a 300 by 600 km, TBD
1
<PAGE>
Amendment 3 to LSA Agreement dated April 20, 2000
inclined orbit. Subcontractors who have previously performed such modifications
for other Cosmos missions using standard removal/replacement, modification, and
test techniques shall modify the guidance instruments.
Add the following paragraph: 3.1.6 Cosmos RF Field Strength Measurements:
The PROVIDER will measure the RF field strength resulting for transmitters on
the launch vehicle. These measurements shall be at various points around and
along a model of the QuickBird spacecraft with the objective of determining the
volts per meter in the frequency bands identified in the (ICD).
This Amendment 3 is agreed to by EarthWatch Incorporated and United Start
Corporation and is executed and agreed to be effective the last date written
below as signified by the signatures and shall be a binding agreement.
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Parties have executed this Amendment 3 to the LSA by
their duly authorized representatives in duplicate originals.
PROVIDER CUSTOMER
/s/ Larry Foor /s/ Shawn Thompson
By:_________________________________ By:____________________________
Name: Larry Foor Name: Shawn Thompson
Title: President & Chief Operating Officer Title: Director of Contracts
2
<PAGE>
Exhibit B -- Payment Schedule
Revised April 20, 2000
1. The price for each Launch shall be $14.0 million US dollars for the first
launch and for replacement or option launches. The proportion of this price
that is cash, and the proportion that is archival data, shall be determined
based on the first-requested Launch Date as defined in Article 4.2 of the LSA
and the milestones as defined in Tables B-1 and B-2. If the Launch Date is
on or before 30 November 2001, the cash portion of the price shall be
$10,400,000 for the first launch, $10,000,000 for replacement launches, and
$12,000,000 for an optional QB2 launch to a sun synchronous orbit.
2. For the first launch, the initial payment is to make this LSA effective. The
succeeding payments are defined in Table B-1. The final payment is made
following the Launch. The payment amounts are shown based on a cash portion
of the launch price of $10,400,000. If the cash portion of the launch price
is greater than $10,400,000 as described above, then the amounts of all cash
payments except for the first payment shall be increased at the next
occurring milestone in a proportional fashion such that the sum of all cash
payments will equal the cash portion of the launch price. The first payment
shall remain at $100,000 in all cases.
3. The archival data payments shall be as defined in Tables B-1, B-2, and B-3
less any increases in the cash payments per the above formula. In the
following tables, the column titled "Projected Completion Date" shows the
dates by which it is anticipated that the corresponding Milestone Events will
be completed. However, payment for a given Milestone Event shall only be made
after the Milestone Event is considered to be complete, in accordance with
Article 29, paragraph 29.4 of this LSA.
4. Certain milestones in the tables below are referenced against the
"Establishment Date", which is the date on which agreement is made on the
initial Launch Date in accordance with Article 4.2 of this LSA. Payment for
these milestones is due upon the later of the completion of the milestone and
the projected completion date shown for that milestone. Unless otherwise
noted below, payment is due within 10 business days following receipt by
EarthWatch of the invoice for milestone completion.
5. The nomenclature Contract Signing Date (CD+n), Establishment Date (ED+n), or
Launch Date (LD - n or +n) months means on the same day of the month as CD,
ED or LD, n months earlier or later. For example, if ED is 1 December 1998,
then ED+3 months will be 1 March 1999.
6. The proceeds from any CUSTOMER launch insurance obtained under LSA Article
13 shall be used to satisfy all payments due PROVIDER at the time of launch
and after launch if applicable.
7. For replacement launches and for an optional QB2 launch to a sun synchronous
orbit, the initial payment in Table B-2 or B-3 is to make this LSA effective
for such a launch. The succeeding payments are defined in Tables B-2 and B-3.
The final payment is made following the Launch. The payment amounts are shown
based on a cash portion of the launch price of $10,000,000 and $11,800,000
respectively. If the
<PAGE>
Exhibit B Payment Schedule
EarthWatch to United Start LSA
Revised April 20, 2000
cash portion of the launch price is greater than their values as described
in paragraph 1 above, then the amounts of all cash payments except for the
first payment shall be increased at the next occurring milestone in a
proportional fashion such that the sum of all cash payments will equal the
cash portion of the launch price. The first payment shall remain at $200,000
in all cases. Should additional milestones need to be repeated they shall be
negotiated and added to Table B-2 or B-3 as they are identified.
8. Licenses, Permits and Approvals in accordance with Article 16 of this LSA
shall occur on or before Milestone 9 for the first launch and on or before
Milestone 2 for optional or replacement launches. If such approval and
licensing does not occur by these milestones, EarthWatch, at its sole option,
may delay further payments until such approval and licensing does occur.
9. As the enumerated agreement within Table B-3 is between EarthWatch and a
related party, the EarthWatch Board will review the exercise of the option
before any exercise is effective.
Page 2
<PAGE>
<PAGE>
Exhibit B Payment Schedule
EarthWatch to United Start LSA
Revised April 20, 2000
TABLE B-1 FIRST LAUNCH MILESTONE PAYMENT SCHEDULE
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Milestone Amount Method Due Date - Milestone Event Projected
Number of Completion Date
Payment
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 $ 100,000 Cash PRE-CONTRACT PAYMENT Pre-CD
-----------------------------------------------------------------------------------------------------------
2 $ 100,000 Cash PRE-CONTRACT PAYMENTS Pre-CD
-----------------------------------------------------------------------------------------------------------
3 $ 200,000 Cash Contract Signing Date (CD) CD
-----------------------------------------------------------------------------------------------------------
4 $ 200,000 Cash Delivery of early engineering analyses (SOW CD + 2 mos
paragraph 3)
-----------------------------------------------------------------------------------------------------------
5 $1,600,000 Cash Authority to Proceed (ATP) from EarthWatch ATP
dependent upon EarthWatch receiving its Export
License and TAA approval; Authority to Proceed
(ATP) shall be at least 7 months before launch
-----------------------------------------------------------------------------------------------------------
6 $ 850,000 Cash Submission of the Range Operations Plan (SOW ATP + 1 mo
para 3.2) and the Logistics and Transportation
Plan (SOW Para 3.6); mutual agreement and
signoff of the Spacecraft/Launch Vehicle ICD
addressing all significant issues
-----------------------------------------------------------------------------------------------------------
7 $1,000,000 Cash Submission of the Preliminary Mission Analyses ATP + 2 mos
(SOW para 3.1.2), of inputs to the Ground
Security Plan (SOW para 3.1.4.5), and the
Facilities Plan (SOW para 3.1.4)
-----------------------------------------------------------------------------------------------------------
8 $ 800,000 Cash Submission of preliminary Coupled Loads ATP + 3 mos
Analysis
(5 mos after receipt of spacecraft structural
model)
(SOW para 3.1.2.5)
-----------------------------------------------------------------------------------------------------------
9 $1,250,000 Cash Establishment of a Firm launch date (LD) Establishment
between EarthWatch and the Provider, The Date (ED)
Establishment Date (ED) shall be at least 6
months before the launch
-----------------------------------------------------------------------------------------------------------
9a $ 200,000 Cash Initiation of Guidance Instrument Modifications April, 2000
-----------------------------------------------------------------------------------------------------------
9b $ 200.000 Cash Completion of Guidance Instrument Not later than
Modifications and Reinstallation/Test in Cosmos LD - 2 mos
-----------------------------------------------------------------------------------------------------------
10 $ 600,000 Cash Final Mission Analyses (SOW para 3.1.2); No later than
Final Coupled Loads Analysis (SOW para 3.1.2.5) LD - 4 mos
-----------------------------------------------------------------------------------------------------------
11 $ 800,000 Cash Pathfinder Arrival at Launch Site LD - 2 mos
-----------------------------------------------------------------------------------------------------------
12 $ 500,000 Cash Spacecraft and Launch Vehicle Arrival at Launch LD - 1 mo
Site
-----------------------------------------------------------------------------------------------------------
13 $2,000,000 Cash Launch LD + 2 mos
-----------------------------------------------------------------------------------------------------------
$3,600,000 Archival Valued at CUSTOMER'S North American price list
-----------------------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
Exhibit B Payment Schedule
EarthWatch to United Start LSA
Revised April 20, 2000
<TABLE>
<S> <C> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------
Data less standard North American distributor
discounts subject to standard data sales terms and
conditions. The amount of this Archival Data
payment shall be adjusted per paragraph 3 of this
exhibit such that the total price of a launch is
$14,000,000.
-----------------------------------------------------------------------------------------------------------
$14,000,000 TOTAL FIXED PRICE FOR FIRST LAUNCH
before 30 November 2001
-----------------------------------------------------------------------------------------------------------
</TABLE>
Page 4
<PAGE>
Exhibit B Payment Schedule
EarthWatch to United Start LSA
Revised April 20, 2000
TABLE B-2
REPLACEMENT LAUNCH MILESTONE PAYMENT SCHEDULE
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Amount Method Due Date - Milestone Event Projected
of Completion Date
Payment
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 $ 200,000 Cash Contract Signing Date (CD) CD
-----------------------------------------------------------------------------------------------------------
2 $ 3,500,000 Cash Submission of Program Schedule per paragraph 4 CD+1 mo
of SOW
-----------------------------------------------------------------------------------------------------------
3 $ 2,250,000 Cash Establishment of a Firm launch dates (LD) Establishment Date
between EarthWatch and the Provider. The (ED)
Establishment Dale (ED) shall be at least 8
months before the launch.
-----------------------------------------------------------------------------------------------------------
4 $ 1,100,000 Cash Final Mission Analyses (SOW para 3.1.2): Final Not later than LD -
Coupled Loads Analysis (SOW para 3.1.2.5) 4 months
-----------------------------------------------------------------------------------------------------------
5 $ 550,000 Cash Rocket Arrival at the Launch Site LD - 3 mos
-----------------------------------------------------------------------------------------------------------
6 $ 550,000 Cash Path Finder Arrival at Launch Site LD - 2 mos
-----------------------------------------------------------------------------------------------------------
7 $ 350,000 Cash Spacecraft Arrival at Launch Site LD - 1 mos
-----------------------------------------------------------------------------------------------------------
8 $ 1,500,000 Cash Launch LD
-----------------------------------------------------------------------------------------------------------
$10,000,000 TOTAL CASH FOR FIXED PRICE TASKS for a
launch before 30 November 2001
-----------------------------------------------------------------------------------------------------------
$ 4,000,000 Archival Valued at CUSTOMER'S North American price list
Data less standard North American distributor
discounts subject to standard data sales terms
and conditions. The amount of this Archival Data
payment shall be adjusted per paragraph 3 of
this exhibit such that the total price of a
launch is $14,000,000.
-----------------------------------------------------------------------------------------------------------
* $14,000,000 TOTAL FIXED PRICE FOR A
REPLACEMENT LAUNCH before 30
November 2001
-----------------------------------------------------------------------------------------------------------
</TABLE>
Page 5
<PAGE>
Exhibit B Payment Schedule
EarthWatch to United Start LSA
Revised April 20, 2000
TABLE B-3
OPTIONAL QB2 LAUNCH MILESTONE PAYMENT SCHEDULE
For a Sun Synchronous Orbit
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------
Amount Method Due Date - Milestone Event Projected
of Completion Date
Payment
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 $ 200,000 Cash Contract Signing Date (CD) CD
-------------------------------------------------------------------------------------------------------------
2 $ 3,300,000 Cash Submission of Program Schedule per paragraph 4 CD+1 mo
of SOW
-------------------------------------------------------------------------------------------------------------
3 $ 2,500,000 Cash Establishment of a Firm launch date (LD) Establishment Date
between EarthWatch and least the Provider. The (ED)
Establishment Date (ED) shall be at least 8
months before the launch.
-------------------------------------------------------------------------------------------------------------
4 $ 1,500,000 Cash Final Mission Analyses (SOW para 3.1.2): Final Not later than LD -
Coupled Loads Analysis (SOW para 3.1.2.5) 4 months
-------------------------------------------------------------------------------------------------------------
5 $ 1,000,000 Cash Rocket Arrival at the Launch Site LD - 3 mos
-------------------------------------------------------------------------------------------------------------
6 $ 750,000 Cash Path Finder Arrival at Launch Site LD - 2 mos
-------------------------------------------------------------------------------------------------------------
7 $ 550,000 Cash Spacecraft Arrival at Launch Site LD - 1 mos
-------------------------------------------------------------------------------------------------------------
8 $ 2,000,000 Cash Launch LD
-------------------------------------------------------------------------------------------------------------
$11,800,000 TOTAL CASH FOR FIXED PRICE TASKS for a
launch before 30 November 2001
-------------------------------------------------------------------------------------------------------------
$ 2,200,000 Archival Valued at CUSTOMER'S North American price list
Data less standard North American distributor
discounts subject to standard data sales terms
and conditions. The amount of this Archival Data
payment shall be adjusted per paragraph 3 of
this exhibit such that the total price of a
launch is $14,000,000.
-------------------------------------------------------------------------------------------------------------
* $14,000,000 TOTAL FIXED PRICE FOR A
REPLACEMENT/OPTION LAUNCH before 30
November 2001
-------------------------------------------------------------------------------------------------------------
</TABLE>
Page 6
