COMMERCIAL IN CONFIDENCE
March 31, 1999 ESAT-GTL-CT0034
Between :
Surrey Satellite Technology Limited (SSTL), University of Surrey, Guildford - Surrey GU25XH, United Kingdom
hereinafter referred to as SSTL
and : DBS Industries Inc, 100 Shoreline Hwy, STE 190A, Mill Valley CA 94941 USA on its own behalf and on behalf of its wholly owned subsidiary Newstar Limited, registered in Bermuda
hereinafter collectively referred to as DBSI
JOINTLY REFERRED TO AS The Parties.
** Represents redacted material made pursuant to a confidential treatment request.
I N D E X
1. SCOPE OF WORK 4
2. CONTRACT DOCUMENTS 5
3. DELIVERY CONDITIONS AND SCHEDULE 7
4. CONTRACT PRICE 10
5. PAYMENT CONDITIONS 12
6. WORK IN PROGRESS INSURANCE 14
7. INSPECTION AND ACCESS TO WORK 15
8. ON SITE PERSONNEL 16
9. KEY PERSONNEL 17
10. COMMUNICATIONS 18
11. ACCEPTANCE PROCEDURE AND INCOMING INSPECTION 19
12. WARRANTY 21
13. CHANGES 25
14. COST ANALYSIS 30
15. SUBCONTRACT 31
16. DELAYS 32
17. UNDERTAKING OF DBSI 34
18. TECHNICAL DIRECTIVES 35
19. PATENT INFRINGEMENT 36
20. PROPRIETARY RIGHTS 37
21. FORCE MAJEURE 40
22. TRANSFER OF TITLE AND RISKS 41
23. LIABILITIES 42
24. TERMINATION 43
25. GOVERNMENTAL AUTHORISATIONS 45
26. PUBLICITY 46
27. LANGUAGE 47
28. APPLICABLE LAW AND ARBITRATION 48
29. ASSIGNMENT 49
30. SATELLITE STORAGE 50
31. STOP WORK ORDER 51
32. COMING INTO FORCE 52
REVIEW OF CONTRACT AMENDMENTS
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AMENDMENT DATE MODIFIED SUBJECT
OR NEW
PAGES -------------------------------------------------------------------------------
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This Purchase and Sale Contract (hereinafter referred to as the `Contract') is made this 31st day of March, 1999
BETWEEN:
(a) SURREY SATELLITE TECHNOLOGY LIMITED (hereinafter referred to as `SSTL') a
company incorporated in England and whose registered office is: Surrey
Space Centre, University of Surrey, Guildford, Surrey GU2 5XH, England; and
(b) DBS Industries Inc on its own behalf and on behalf of its wholly owned
subsidiary Newstar Limited, registered in Bermuda (hereinafter referred to
as `DBSI') located at 100 Shoreline HWY, STE 190A, Mill Valley CA 94941
USA.
WHEREAS:
(A) DBSI has requested and, SSTL has agreed to provide or procure the provision
of certain microsatellite equipment and services (hereinafter referred to
both separately and collectively, unless the context shall otherwise
provide, as the `Products'); and
(B) The programme will comprise:
Design, develop, manufacture, test, supply, launch support and initial
operations support of the ESAT Satellite Project
(C) SSTL has agreed to provide and/or procure the provision of the Products on
the terms and conditions set out in this Agreement and the attached
Appendices.
(D) In addition, if requested by DBSI, SSTL will endeavour to assist DBSI to
obtain suitable launch services and launch insurance although these
services will only be provided under the terms of a separate agreement.
NOW THEREFORE IT IS HEREBY AGREED as follows:
DEFINITIONS
"E-SAT Project" Shall mean the E-SAT Communications Satellite Project.
"E-SAT Payload" Means a Payload built and integrated by DBSI to be part
of the E-SAT Satellite
"E-SAT Platform" Means a Spacecraft to be supplied to DBSI to be part of
the E-SAT Satellite System
"Intentional Ignition" Means the time in the ignition process, for
the purpose of Launch, when the command signal sent
from the launch control console is received by the
Launch Vehicle to commence Launch.
"Launch" Means the intentional ignition of any first stage
engine of the Launch Vehicle that has been integrated
with an ESAT Platform supplied by SSTL.
"Subcontractors/ Subcontracts" "Subcontracts" mean where the context so requires all
agreements entered into by SSTL and third parties to
this Contract, including but not limited to Major
Subcontracts, necessary for the performance of the Work.
"Subcontractors" shall refer to such third parties.
1. SCOPE OF WORK
1.1 This Contract covers the work to be performed by SSTL for :
- Design, construction, test and delivery of the ESAT Platform , for
DBSI.
- Support for E-SAT micro satellite integration at DBSI premises.
- Support for launch and post-launch phases, as defined in Appendix 1,
Statement Of Work
- Product Assurance as defined in Appendix 3.
- Technical assistance of E-SAT project team in DBSI premises as
defined in Appendix 1, Statement of Work.
- Recovery of breakdowns according to the terms of SSTL warranty.
- Delivery of E-SAT Electrical Ground Support Equipment (EGSE) as
defined in Appendix 1 Statement of Work.
1.2 The Parties hereby agree that SSTL shall be entitled to subcontract part
or parts of the work to be performed under this Contract to
subcontractors in accordance with Clause 15.
1.3 Some obligations necessary to the proper performance of this Contract
other than those mentioned above will be borne by DBSI in accordance with
Clause 17 : UNDERTAKINGS OF DBSI.
2. CONTRACT DOCUMENTS
2.1 The Contract consists of the following documents:
These Terms and Conditions including Clauses 1 to 32.
The following Appendices:
Appendix 1
Appendix 1 :
Statement of Work for the Satellite
Ref. : ESAT-BJT-SW-0033
Appendix 2
Appendix 2 :
E-SAT Satellite Technical Requirements
Ref. : ESAT-BJT-SW-0032
Appendix 3
Appendix 3
SSTL Product Assurance Plan for the E-SAT Program
2.2 Any modification to the terms of this Contract shall be made only in
writing after mutual agreement between the Parties through a CONTRACT
AMENDMENT completing or replacing the relevant text of this Contract.
Its content will be as follows :
- front page bearing the Contract Amendment number, - modified and/or new
pages bearing the Contract Amendment number, - update of the "Review of
Contract Amendment", - signature page.
These pages shall cancel and replace the previously applicable pages to
become an integral part of the Contract.
2.3 In case of contradiction between the present text and any of its
Appendices, the present text shall prevail. In case of contradiction
between Appendices, the order of precedence shall be the numerical order
given in Clause 2.1 above. Said order shall also apply to all applicable
documents attached to Appendices.
3. DELIVERY CONDITIONS AND SCHEDULE
3.1 Equipment Delivery Schedule
All equipment under this Contract shall be delivered "CIP Toulouse
Blagnac Airport" or subsequent destination to be agreed, according to
Conditions of INCOTERMS 1990, by SSTL :
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ITEM QTY DESCRIPTION DELIVERY DATE ------------------------------------------------------------------------------
1 1 RF Model OPTIONAL ------------------------------------------------------------------------------
2 1 DSS Engineering Model OPTIONAL ------------------------------------------------------------------------------
3 1 EGSE # 1 FOR AIT QFM1 ------------------------------------------------------------------------------
4 1 EGSE # 2 FOR AIT FM2 ------------------------------------------------------------------------------
5 1 EGSE # 3 FOR AIT FM3 ------------------------------------------------------------------------------
6 1 QFM1 platform Sept ember, 2000 ------------------------------------------------------------------------------
7 1 FM2 platform October, 2000 ------------------------------------------------------------------------------
8 2 FM3 Platform October, 2000 ------------------------------------------------------------------------------
9 1 FM4 Platform April, 2001 -----------------------------------------------------------------------------
10 1 FM5 Platform April, 2001 -----------------------------------------------------------------------------
11 1 FM6 Platform April, 2001 -----------------------------------------------------------------------------
12 1 LEOP # 1 Q1, 2001 -----------------------------------------------------------------------------
13 1 LEOP # 2 Q3, 2001 -----------------------------------------------------------------------------
14 3 Shipping containers For EVT Platforms QFM1,FM2,FM3 -----------------------------------------------------------------------------
15 1 SCC TBD ------------------------------------------------------------------------------
16 3 MGSE For AIT Platforms QFM1,FM2,FM3 -----------------------------------------------------------------------------
17 3 Mass Models TBD ------------------------------------------------------------------------------
3.2 Documentation
The list of Deliverable Documents (Documentation Requirement List) as
well as associated requested delivery dates are provided in Appendix 2 :
Statement of Work.
3.3 Delivery procedure
3.3.1 Documentation
Documentation is to be sent to DBSI as specified in Clause 10
3.3.2 Equipment
Notification of shipment
In order to secure the proper delivery of the equipment, SSTL is required
to fax basic shipment data to DBSI as soon as they become available.
Said data shall be limited to :
- Ref of airway bill - Flight n(degree), departure and arrival time -
Contract n(degree), - ref of equipment
and shall be sent to :
DBSI as per Clause 10
Address of delivery
In accordance with the CIP Toulouse Blagnac Airport or subsequent
destination to be agreed, the Items subject of this Contract, shall be
delivered by SSTL to the following address (consignee) :
address
The following address shall be systematically indicated on each parcel :
FINAL DESTINATION
DBSI
To the attention of G T Leger
3.4 Should it become obvious to SSTL that it will not be able to comply with
the delivery dates indicated in Clause 3.1. and in Appendix 1, it shall
notify DBSI according to the provisions of Clause 10.
4. CONTRACT PRICE
4.1 For the full, satisfactory and timely performance of the Work by SSTL,
DBSI shall pay to SSTL the Firm Fixed Price of :
Not to exceed 17 Million US Dollars
4.1.1 Nature of Price
The above price is :
The prices include all packaging and shipping and delivery of all the work
o Based on CIP Toulouse Blagnac Airport according to INCOTERMS 1990
subsequent destination to be agreed o Firm and Fixed o Free of VAT (Value
Added Tax) and free of all present taxes, levies, duties and other charges
of any nature, applicable in SSTL's country for the performance of this
Contract, which will be entirely borne by SSTL.
o For the avoidance of doubt, DBSI shall be entirely responsible for all
other taxes, levies, duties and other charges of any nature arising or
applicable in any other countries than the United Kingdom
4.2 Detailed Contract Price
All prices are stated and payments made in US Dollars.
Detailed prices are given in Table 1 below.
Table 1 (all prices in USD)
Item Price List Price
---- ---------------------- -----------
1 Non Recurring Cost **
---- ---------------------- -----------
2 Proto Flight Model **
---- ---------------------- -----------
3 Flight Models **
---- ---------------------- -----------
4 Radio Frequency Model **
---- ---------------------- -----------
5 Ground Support System **
---- ---------------------- -----------
6 Launch and Early Orbit
Phase Operations **
---- ---------------------- -----------
7 Support to Launch **
Campaign
---- ---------------------- -----------
Subtotal **
---- --------------------- -----------
8 Increased Height **
---- ---------------------- -----------
9 Additional EGSE **
---- ---------------------- -----------
10 Mass Models **
---- ---------------------- -----------
11 Launch Support **
---- ---------------------- -----------
12 System Support **
---- ---------------------- -----------
Grand Total **
Price **
(** Represents redacted material made pursuant to a confidential treatment request)
Notes :
[1] Item 1: Non Recurring Costs include some of the project setting up,
overhead and management charges
[2] Item 2: Proto-Flight Model (PFM) includes environmental test programme
(excluding payload antenna)
[3] Item 3: Flight Models includes partial environmental test programme
[4] Item 7: Support to Launch Campaign comprises 2 SSTL personnel
[5] Item 8: Increased height of spacecraft to 700mm
[6] Item 9: Additional Electrical Ground Support Equipment (EGSE) brings total
to three sets 3 EGSE
[7] Item 10: Mass models, geometric version of which is to be suitable for
display purposes
[8] Item 11: support to launch agency includes requirements for working with
EuRockot and providing interface
[9] Item 12: system support comprises continuation of measurement campaign,
additional support to DBSI for frequency management and system support.
5. PAYMENT CONDITIONS
Payments due under this Contract by DBSI to SSTL shall be made in
accordance with the Payment Plan hereafter.
5.1 Payment Plan
Milestone Number Date Milestone Amount in US Dollars
Event
--------------- ---------------- ---------------------- -----------------------
1 1 April 1999 Signing of Contract **
2 1 July 1999 Draft Production Bill **
3 1 October 1999 Baseline Definition Review **
4 1 January 2000 PDR **
5 1 April 2000 CDR **
6 1 July 2000 Module Readiness **
7 1 October 2000 Test Readiness **
8 1 January 2001 Delivery of Platforms **
======================
Total **
(** Represents redacted made material pursuant to a confidential treatment request)
5.2 Invoicing
Invoices are to be submitted for each milestone, 30 days in advance and sent in accordance with Clause 10.
Each invoice shall contain the following elements :
o name of the Program
o identification number of the Contract ;
o identification of the required payment (milestone definition, number, date
and amount) o name and address of the Bank to be credited together with the
relevant Bank account number.
Any invoice submitted without the above information or not complying with the above requirements shall be sent back to SSTL for correction and resubmission.
5.3 Payments
Payments shall be made upon satisfaction of both Calendar and Milestone completion conditions.
DBSI guarantees that the time span between the date of receipt of the invoice and the order of swift credit transfer in favour of SSTL shall not exceed 30 (thirty) calendar days, providing both calendar and milestones conditions have been met.
Written evidence supporting achievement of each milestone shall be submitted by SSTL along with the corresponding invoice.
6. WORK IN PROGRESS INSURANCE
SSTL shall provide adequate insurance and shall ensure that its insurance is sufficient for the value of the work on the Contract from commencement until the delivery of the platforms in accordance with Clause 3.1. SSTL shall provide to DBSI a copy of the certificate of insurance before the beginning of Assembly, Integration and Test (AIT).
7. INSPECTION AND ACCESS TO WORK
7.1 SSTL shall provide representatives of DBSI access to its premises where
work under this Contract is being performed, and shall assist them in
exercising their rights under the present Clause 7.
7.2 DBSI shall have the right to monitor the progress of the work which must
be carried out in accordance with the terms and conditions of the present
Contract, and shall have access to the data and documentation generated
under this Contract by SSTL as required to complete the Contract
satisfactorily.
7.3 With regard to administrative procedures, internal rules and regulations
of SSTL shall be applicable to the DBSI personnel.
7.4 During the performance of the Contract, when it has been established that
materials or semi-finished or finished hardware parts do not comply with
the requirements of this Contract :
DBSIwill be entitled to refuse the use or incorporation of these parts
in a deliverable hardware under this Contract
The suspended or rejected parts shall be corrected, improved or replaced
as agreed by both Parties.
7.5 The performance of any inspection under the present Clause 7 shall in no
way affect the responsibility of SSTL nor does it restrict the right of
DBSI or the inspecting authority acting on its behalf :
to reject deliverable hardware offered for acceptance
to enforce the warranty clause after acceptance
8. ON SITE PERSONNEL
8.1 If so requested and upon reasonable advance notice SSTL shall make the
effort to accommodate DBSI representatives at SSTLs premises.
The number of representatives shall be determined on a case by case
basis. The above applies in case SSTL's representatives are necessary
in the DBSI premises
8.2 The representatives of DBSI shall be entitled to use all of SSTL's normal
communications systems, i.e. telephone, fax etc, on a free of charge
basis for the purpose of the present Contract.
If necessary SSTL will facilitate all administrative steps of the above
mentioned representatives during the period of their stay.
The above applies in case SSTL's representative are necessary in the DBSI
premises.
9. KEY PERSONNEL
9.1 It is agree that the following employees are considered key personnel for
the performance of this Contract :
M. Losekoot Platform Programme Manager
J. Paffet Ground Segment, Operations & Frequency coordination manager
J. Lorenzi Project Manager
M. Allery Director of Projects
The availability of M. Losekoot to DBSI for the ESAT project shall be not less than 50%.
9.2 SSTL agrees that the following rules apply to key personnel :
the work related to this Contract shall be executed by such key personnel
as defined above, such personnel to be fully available to the practical
extent possible throughout the Contract for the work allocated to them by
SSTL.
SSTL shall be entitled to carry out replacement of key personnel or
part-time assignment to other tasks if it can demonstrate it has been
compelled to do so.
In that case, the SSTL shall inform DBSI in due time of its intentions
and provide supporting arguments along with a resume of the proposed
replacement personnel.
Replacement personnel must be approved by DBSI within (7) days and
approval shall not be unreasonably withheld.
10. COMMUNICATIONS
Any notice, invoice or correspondence between DBSI and SSTL in relation
to this Contract shall be sent by the appropriate means to :
10.1 In the case of DBSI :
DBSI
address
Main Office :
Fred Thompson DBS Industries Inc, 100 shoreline HWY, STE 190A,
Mill Valley, CA 94941 USA Tel +1 415 380
8055 Fax +1 415 380 8199
Project Office :
Gregory T. Leger, 3, allee Traquet Patre, 31320 Vigoulet-Auzil France
Tel +33 6 03 42 5101 Fax +33 5 61 733153
One hard copy to the main office, two hard copies to the project office
together with a labeled disk or disks, with microsoft office compatible
format, of identical content
or such other persons at such address as DBSI may from time to time
direct in writing for specific purposes.
In the case of SSTL :
Surrey Satellite Technology Limited (SSTL)
University of Surrey
Guildford - Surrey GU25XH
UNITED KINGDOM
o For technical matters to M. ALLERY
Tel : (44) 1 483 259 278 - Fax: (44) 1 483 259 503 o For Contractual matters to S.A. MILLAR
Tel : (44) 1 483 259 278 - Fax: (44) 1 483 259 503
or to any other address that SSTL might notify in writing to DBSI
11. ACCEPTANCE PROCEDURE AND I ...
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