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Exhibit 10.79
CONTRACT NUMBER SHB 98002
DATE 02/11/98
FOR
KEEL YOKE AND ASSOCIATED MECHANISMS
DESIGN AND CONSTRUCTION
BETWEEN
SPACEHAB, INCORPORATED
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AND
DAIMLER-BENZ AEROSPACE
SPACE INFRASTRUCTURE DIVISION
P.O. BOX 286156
D-28361 BREMEN
GERMANY
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TABLE OF CONTENTS
Preamble ......................................................................... 3
Article 1. Entire Agreement ..................................................... 3
Article 2. Scope of Work ........................................................ 4
Article 3. Period of Performance ................................................ 4
Article 4. Contract Amount ...................................................... 5
Article 5. Reimbursement for Travel Expenses .................................... 5
Article 6. Payment .............................................................. 5
Article 7. Other Contractor and Customer Interface .............................. 6
Article 8. SPACEHAB Direction / Contractor Interface ............................ 7
Article 9. Changes .............................................................. 8
Article 10. Intellectual Property Rights ......................................... 9
Article 11. Confidentiality ...................................................... 9
Article 12. Document Translation ................................................. 9
Article 13. Local Services ....................................................... 9
Article 14. Packaging and Marking ................................................ 9
Article 15. Title and Delivery ................................................... 10
Article 16. Inspection and Acceptance ............................................ 10
Article 17. Items, Equipment, Property, Services to be Furnished by SPACEHAB, Inc. 10
Article 18. Warranty ............................................................. 11
Article 19. Termination .......................................................... 12
Article 20. Force Majeure ........................................................ 12
Article 21. Governing Laws ....................................................... 12
Article 22. Dispute Resolution ................................................... 13
Article 23. Provisions for Execution ............................................. 13
Exhibit A I - Statement of Work .................................................. 14
Exhibit A II - Prime Item Development Specification (PIDS) ....................... 15
Exhibit B - Wire Transfer Instructions ........................................... 16
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This contract is entered into by and between SPACEHAB, Inc., with an address at
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(HEREINAFTER REFERRED TO AS "DASA-RE" OR " CONTRACTOR").
AND
DAIMLER-BENZ AEROSPACE,
SPACE INFRASTRUCTURE DIVISION
WITH ▇▇ ▇▇▇▇▇▇▇ ▇▇
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(HEREINAFTER REFERRED TO AS "DASA-RI" OR "CONTRACTOR").
PREAMBLE
It is recognized by both parties that:
- Dasa-RI has had and continues to have marketing efforts in
Europe to sell to the European Space Agency (ESA) and to
national Space Agencies in Europe concepts using a cargo
pallet in connection with the Intemational Space Station;
- Nothing in the contract for "Keel Yoke and Associated
Mechanisms Design and Constructions shall preclude Dasa-RI
from investing in and procuring a cargo pallet of its own in
order to be able to pursue the business opportunity described
above. SPACEHAB would also grant Dasa-RI at conditions to be
negotiated a license to build the Unpressurized Cargo Pallet
(UCP) currently developed under SPACEHAB contract;
- SPACEHAB will not unreasonably withhold the usage of its Keel
Yoke Assembly (KYA) if the pallet procured by Dasa-RI fits
technically. The KYA will be made available by SPACEHAB at
reasonable commercial conditions which are in line with
SPACEHAB's standard pricing policies towards NASA and other
national customers.
The parties agree as follows:
ARTICLE 1. ENTIRE AGREEMENT
This cone act ("Contract"), all exhibits, and other documents incorporated by
reference, whether or not attached, constitute the complete and exclusive
statement of the Contract between SPACEHAB and Dasa-RI
This contract supersedes any previous understanding or agreement between
SPACEHAB and Dasa RI (oral or written) with respect to the subject matter of
this contract.
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ARTICLE 2. SCOPE OF WORK
1. Dasa-RI shall design, develop, manufacture, test, and deliver the SPACEHAB
ICC Keel Yoke and Associated Mechanisms in accordance with requirements
identified in the Prime Item Development Specification (PIDS, Document No.
ICC 97002), and the Statement of Work (SOW, Document No. SHE ICC-S1002)
attached as Exhibit A. Furthermore Dasa-RI shall perform the task of generic
integration of the ICC which is also described in the SOW. With respect to
the coupled load analysis task it is agreed that up to CDR only one load case
will be considered and after CDR this task is excluded from this Contract and
covered under the l&O contract. In the event of conflict among referenced
documents and unless otherwise specified in this contract, the order of
precedence shall be as listed below:
1. This Contract terms and conditions
2. The Statement of Work (ICC S 1002) - Exhibit A II
3. The ICC Prime Item Development Specification (ICC 97002) - Exhibit A II 4.
The specific sectors of the documents referenced in the SOW ICC S1002
2. Dasa-RI will make available its resources for post delivery support at
conditions comparable to those contained in the present contract for a period
of up to two years; such activities are not covered under the contract amount
(Article 4 below) but are contemplated for the l&O contract.
SPACEHAB confirms that Dasa-RI is the selected cone actors for future
activities / procurements related to ICC with the exclusion of UCP related
activities - and for ICC related follow-on projects and SH herewith grants to
Dasa-RI the "right of first refusal" for future contracts related to system
sustaining engineering and enhancement of functional capabilities of ICC. /
ARTICLE 3. PERIOD OF PERFORMANCE
Dasa-RI shall perform the work called for under this contract as the
continuation of the PDR effort performed under the Letter Agreement dated July
28, 1997. Work shall continue through the Initial Integrated Cargo Carrier
(IICC) fit check at the SPACEHAB Payload Processing Facility (SPPF), as
described in the SOW. The period of performance of this contract shall be from
the date of contract signature through January 31, 1999. The period of
performance of this cone act may be extended by mutual agreement.
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ARTICLE 4. CONTRACT AMOUNT
1. The fixed price to be paid to Dasa-RI for the products and services under
this contract is $ 3.24 Million (in words: Three Million and Two Hundred
Forty Thousand U.S. Dollars).
2. This amount excludes the amount previously agreed under the Letter Agreement
and its No. 1 of $ 150.000 (in words: One Hundred Fifty Thousand U.S.
Dollars) for work to be performed up to PDR and also excludes the amount of $
260.000 (Two Hundred Sixty Thousand U.S. Dollars) for long lead item
procurement.
This amount does not include personnel travel costs which are dealt with
under Article 5 below.
In addition to the contract amount specified above SPACEHAB shall pay to
Dasa-RI an amount of $ 400.000 (in words: Four Hundred Thousand U.S. Dollars)
as a bonus if Dasa-RI delivers the KYA flight hardware at or before the
agreed date for delivery.
This bonus payment is reduced to 250.000 (in words: Three Hundred Thousand
U.S. Dollars) if delivery is made within the month following the agreed date
for delivery and further reduced to $ 150.000 (in words: One Hundred Fifty
Thousand U.S. Dollars) if delivery is made within two month following the
agreed date for delivery.
The bonus payment shall also be due if Dasa-RI is unable to deliver on time
because a SPACEHAB Inc. furnished item (see Article 17 below) is not
available in due time.
ARTICLE 5. REIMBURSEMENT FOR TRAVEL EXPENSES
SPACEHAB shall reimburse Dasa-RI for actual pre-approved transportation and
hotel expenses for travel to SPACEHAB in the United States and to RSC-Energia
in Russia, and on a per diem basis for meals and other expenses. The per diem
allowance in the United States and in Russia shall be at the rate of $ 58 per
day.
ARTICLE 6. PAYMENT
Payment of the contract amount shall be made in four installments upon
achievement of the following milestones:
0. Preliminary Design Review* 12/97 $ 410.000 U.S.
1. Critical Design Review 4/98 $ 640.000 U.S.
2. Modal Survey Test of KYAFM and UCP 9/98 $ 1.200.000 U.S.
3. KYAFM acceptance and consent to ship 11/98 $ 1.050.000 U.S.
4. Fit check and acceptance of generic 1/99 $ 350.000 U.S.
integration task
* listed for reference only and paid for under the letter agreement
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It is expressly agreed that the payments related to milestone No. 3.) and 4.)
above shall be deferred until after the first flight of the MICC hardware;
however, these payment shall be made no later than 12/99.
In addition to the installments listed above SPACEHAB shall make a bonus payment
of $ 400.000 ( in words: Four Hundred Thousand U.S. Dollars) in 12/98 upon
delivery of the KYA flight hardware to the processing facility in Florida in
accordance with article 4 section 2.
All payments including bonus payments, if any, shall be made upon receipt of
invoice by wire transfer to the account listed in Exhibit B attached hereto and
shall be completed within 30 days of written ratification of completion of the
associated payments milestone by the SPACEHAB ICC Program Manager.
ARTICLE 7. OTHER CONTRACTOR AND CUSTOMER INTERFACE
1. All formal contacts on the subject matter with SPACEHAB, Incr.'s customer
NASA, RSC-Energia, or other suppliers under contract to SPACEHAB, Inc. on the
project shall be made through the SPACEHAB, Inc. ICC Project Manager. This
restriction is not intended to inhibit technical interfaces and the
contractor may, at any time, request action by SPACEHAB, Inc. to arrange
exchanges of needed information or to provide data. It is expected that
informal contact, technical discussion and information exchange between
Dasa-RI, RSC-Energia and other suppliers on this project is mandatory, to
ensure the timely resolution of interface and integration issues. A record of
such discussions will be made and distributed to SPACEHAB, Incr.'s Project
Manager.
2. SPACEHAB has contracted with RSC-Energia of Moscow, Russia, for production of
the Unpressurized Cargo Pallet (UCP). Correspondingly all contractual aspects
related to the UCP are dealt with exclusively between SPACEHAB and
RSC-Energia.
Any formal technical direction for the UCP including but not limited to
development, production, transportation, integration and contract
deliverables will be from SPACEHAB to RSC-Energia. The ICDs are generated by
Dasa-RI and jointly agreed between SPACEHAB, RSC-Energia and Dasa-RI and
SPACEHAB shall retain full responsibility for the timely availability of the
UCP for integration into the ICC.
3. Dasa-RI shall perform the scope of work specified under Article 2. above.
Dasa-RI is expected to work directly and informally with RSC-Energia
engineers on the technical level in order to facilitate the activities
related to integration of the UCP into the MICC system. A budget is contained
in the contract amount for informal technical coordination with RSC-Energia.
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ARTICLE 8. SPACEHAB DIRECTION / CONTRACTOR INTERFACE
Dasa-RI shall accept direction from one of the following SPACEHAB individuals
only:
Technical and
programmatic issues
Prime Contact ▇▇▇▇ ▇▇▇▇▇▇ ICC Program Manager
Ultimate Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Director, Technology Development
Contractual Issues: ▇▇▇▇ ▇▇▇▇▇▇ Vice President of Flight System
Development
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Contract Administrator
SPACEHAB shall address all directors and other communication only to the
following persons:
Technical and
programmatic issues
Prime Contact Owe ▇▇▇▇ ICC Program Manager
Alternate Contact Dr. Ingo Retat ICC System Engineer
Contractual Issues: ▇▇▇▇▇▇ ▇▇▇▇ ICC Contracts Officer
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ARTICLE 9. CHANGES
All changes to the contractual baseline defined in Article 2 above shall be made
as follows:
Both Parties shall agree to the revised wording in all or appendices or
incorporated documents of this agreement necessary to implement the changes that
they have agreed upon, and the total of all such revisions to be made at a
single time shall be known as the "Amendments".
The Amendment shall be approved or disapproved by an official of each Party who
has the power and authority to bind his Party by approving Amendments to this
agreement SPACEHAB and Dasa-RI agree that the representatives of each Party
designated in accordance with the provisions of Article 8 above shall be the
only officials who have this power and authority. These officials shall be known
as the Amendment Officers" of each Party. The signing and dating of the
Amendment by an Amendment Officer of the Party shall signify his Party's consent
to be bound by the agreement as revised by the Amendment.
Directed Chances
SPACEHAB may at any time, by written order from its Program Manager, request
changes within the general scope of this agreement in any one or more of the
following:
- Drawings, designs, or specifications when the items to be furnished are to be
specially manufactured for SPACEHAB in accordance with the drawings, designs
or specifications.
- Method of shipment or packing.
- Place of delivery.
- Schedule of delivery.
If any such change causes an increase or decrease in the cost of, or the time
required for, performance of any part of the work under agreement, whether or
not changed by the order, the parties shall agree to an equitable adjustment in
the fixed price, the delivery schedule, or both, and shall modify the agreement.
The contractor shall not be liable for implementing such changes until mutual
written agreement regarding cost and schedule has been reached.
Effective Date of Amendments. An Amendment which does not involve a directed
change as set forth above by SPACEHAB shall not be effective and shall not be
binding on either Party until the Amendment is signed and dated by an Amendment
Officer of each Party, at which time this agreement, as revised by the
Amendment, shall supersede and replace the terms of the previous agreement for
all purposes. An Amendment involving a change directed by the SPACEHAB as set
forth above shall be deemed binding and effective as of the date upon which the
Amendment embodying such change is added to this agreement by the Amendment
procedure contained in this article.
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ARTICLE 10. INTELLECTUAL PROPERTY RIGHTS
All worldwide Intellectual Property (IP) rights (including but not limited to
patents, copyrights, trademarks, service marks and trade secrets) created under
this contract shall be the sole property of SPACEHAB. Dasa-RI agrees to
reasonably assist SPACEHAB in securing such rights through patent, copyright and
trade name applications in various worldwide jurisdictions. All IP utilized in
the performance of this contract shall remain the exclusive property of the
partys) who had the rights in the IP prior to this contract.
ARTICLE 11. CONFIDENTIALITY
SPACEHAB and Dasa-RI shall abide by the Nondisclosure Agreement between the
parties dated September 1996, which terms and conditions other than termination
date are incorporated herein by this reference. The obligations of the agreement
shall remain binding for the parties for a period of three (3) years following
final acceptance under this Contract.
ARTICLE 12. DOCUMENT TRANSLATION
All textual documents provided by Dasa-RI shall be in English.
ARTICLE 13. LOCAL SERVICES
To facilitate face-to-face meetings, the host party shall provide meeting
facilities, interpreter services, and local transportation for the visiting
contractors.
ARTICLE 14. PACKAGING AND MARKING
Packaging and marking for shipment of all items ordered under this contract
shall be in accordance with good commercial practice, and adequate to ensure
both acceptance by common carrier and safe transportation at the most economical
rates.
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ARTICLE 15. TITLE AND DELIVERY
The point of delivery for any hardware required shall be SPACEHAB, Inc.'s ICC
Processing Facility, Florida. Hardware deliverable items are listed in section
2.2 of the SOW. The point of delivery for any data required shall be SPACEHAB,
Ind., Houston, Texas. Data deliverable items are listed in section attachment DB
of the SOW.
Dasa-RI is responsible for transportation and insurance of all items deliverable
under the present cone act and shall cover the corresponding expenses. It is
expressly agreed that there is no such responsibility on Dasa-Rl's side with
respect to the UCP.
All taxes, customs and other duties connected with the performance of the
present contract levied on the territory of the customer's country are home by
the customer, and those levied on the territory of the contractors country are
home by the contractor.
Title to the deliverable hardware shall pass to SPACEHAB upon successful
completion of the incoming inspection at the SPACEHAB, Inc.'s ICC Processing
Facility in Florida.
ARTICLE 16. INSPECTION AND ACCEPTANCE
The place of final inspection and acceptance for the deliverable hardware called
for under this cone act shall be Dasa's facility in Bremen. Acceptance of the
generic integration task shall be after the acceptance fit check at SPACEHAB,
Inc.'s ICC Processing Facility. The place of inspection and acceptance of all
deliverable reports and documentation shall be at SPACEHAB, Houston, Texas, with
a copy to SPACEHAB Cape Canaveral, Florida as specified by SPACEHAB. (Definition
of inspection and acceptance section 4.2.7.3 of the SOW).
ARTICLE 17. ITEMS, EQUIPMENT, PROPERTY, SERVICES TO BE FURNISHED BY SPACEHAB,
INC.
1. SPACEHAB shall make available to Dasa-RI the UCP procured from RSC-Energia in
compliance with the ICD ICC-RIBRE-ICD~01 and at the times specified in the
verification plan ICC-RIBRE-PL-004.
2. SPACEHAB shall also make available all UCP and Payload related documentation,
data, results of analysis, models (e.g. input to coupled loads and thermal
analysis), etc. required to perform the generic integration task with precise
dates being agreed at CDR.
3. SPACEHAB shall also make available facilities at SPACEHAB Inc. ICC processing
facility to perform the fit-check.
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ARTICLE 18. WARRANTY
Dasa-RI warrants the KYA and Associated Mechanisms will be built in accordance
with the SOW SHI-ICCS1002, and that the hardware furnished under this contract
will meet the requirements of specification PIDS ICC 97002 and will be free from
defects in materials furnished and workmanship performed by DasaRl.
Dasa-RI will correct any defective services and, at Dasa's option, repair or
replace with reasonable promptness any hardware items to be delivered under this
contract which are actually defective and only if prompt notice of such defects
in hardware items or services is given, and in no event later than 6 (six)
months from the date of final acceptance of these hardware items or services.
In the event Dasa-RI cannot repair or replace a defective hardware item in a
reasonable time, Dasa-RI shall return the price of such hardware item to
SPACEHAB.
SPACEHAB shall notify Dasa-RI in writing of any defect, within ten (10) working
days after discovery of such defect, and shall furnish relevant information with
respect thereto.
Repaired items, or services performed, shall be warranted only for the unexpired
portion of the warranty applicable to the original item or service. Replaced
items shall be warranted for 6 (six) months. Any other provision of this
contract to the contrary notwithstanding, this warranty is in lieu of all other
warranties, expressed or implied, including merchantability or fitness for any
particular purpose, whether arising by law, custom, conduct or usage of trade,
and the rights and remedies provided herein are exclusive and in lieu of any
other rights or remedies. In no event shall Dasa-RI be liable for incidental or
consequential damages arising out of a breach of this warranty.
This warranty does not extend to any item which has been subject to misuse,
neglect or accident after acceptance - unless caused by Dasa itself - nor does
it extend to any item which has been repaired or altered by other than Dasa-RI
personnel. Upon request, SPACEHAB shall furnish to Dasa-RI all information
available that the defect arose from causes other than those contained in the
preceding sentence.
This warranty shall be null and void if the hardware items are handled,
transported or stored under conditions outside of those specified in the
recommended handle of procedures and the consequences cannot be resolved through
subsequent testing and/or engineering analysis.
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ARTICLE 19. TERMINATION
SPACEHAB may, in case of major changes in the International Space Station
Program which would preclude the use of the ICC, terminate this contract. In the
event of termination, SPACEHAB will pay for completed work before this date as
well as cost of all work in process in accordance with Article 6, and reimburse
expenses incurred up to the date of termination in accordance with Articles 4
and 5 and to also pay the bonus payment mentioned in Article 4, section 2.
In the event SPACEHAB terminates this contract, Dasa-RI shall provide the
following items to SPACEHAB to determine proper restitution:
- Detailed invoices of material expenditures including, but not limited to
procurement of long lead items.
- Detailed list of all in-work and completed textual and graphic documents
created in the scope of this Contract.
- Detailed list of all other expenditures made with the payments made by
SPACEHAB to Dasa-RI prior to termination of this Contract.
Termination of this contract does not terminate obligations of SPACEHAB and
Dasa-RI to comply with Articles 10 and 11.
ARTICLE 20. FORCE MAJEURE
The contractor shall be excused for delay in delivery and/or may suspend and to
the extent of 'force majeure' which shall include the occurrence or existence of
acts of god, war, the public enemy, mobilization, riot, strike, fire, flood,
embargoes, the acts or orders of Goveernments or political subdivisions thereof,
and other cases outside the cone actors responsibility and control which
adversely and materially prevents the contractor from performing hereunder.
As soon as cases of Force Majeure occur or come to the knowledge of the
contractor, contractor shall notify SPACEHAB without delay, giving details of
the cause, the possible effects, and how the situation could be improved.
Contractor shall have no responsibility whatsover to SPACEHAB or its customer
for any consequences arising out of a force Majeure event, unless such event was
foreseeable. In no event shall cone actor be liable for incidental or
consequential damages arising out of said event.
ARTICLE 21. GOVERNING LAWS
The laws of the Commonwealth of Virginia shall govern all provisions specified
by and performed under this contract.
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ARTICLE 22. DISPUTE RESOLUTION
Any and all disputes hereunder shall be resolved by arbitration in the
Washington, D.C. metropolitan area pursuant to the arbitration rules of the
International Chamber of Commerce. The parties hereby agree that any arbitration
findings hereunder may be enforced in any U.S. Federal Court in Washington D.C.
or Virginia and the parties hereby consent to the jurisdiction of such courts
for such purpose.
ARTICLE 23. PROVISIONS FOR EXECUTION
Dasa-RI and SPACEHAB shall execute two (2) copies of this contract in English,
one for each parW.
SPACEHAB, INC.
By: ______________________ By: ______________________
Typed Name: ______________________ Typed Name: ______________________
Title: ______________________ Title: ______________________
Date: ______________________ Date: ______________________
