SALES CONTRACT
BETWEEN
LITTON SYSTEMS, INC., AMECOM DIVISION (LITTON AMECOM)
AND
SPACE TECHNOLOGY DEVELOPMENT CORP. (STDC)
CONTRACT NUMBER: STDC-NEMO-98-0009
Dated: 29 October 1998
STDC-NEMO-98-0009 PAGE
Table of Contents
1 RECITALS 1
2 ABBREVIATIONS AND DEFINITIONS 1
3 SCOPE, DELIVERABLES & PRICES 2
3.1 SCOPE 2
3.2 DELIVERABLES AND PRICES 3
3.3 PROCEDURES FOR DELIVERY ORDERS (CLIN 6) 3
3.4 COMPENSATION -LABOR HOURS (DELIVERY ORDERS) 4
3.5 ADDITION OR SUBSTITUTION OF PERSONNEL (CLIN 6) 5
3.6 TERMINOLOGY AND ORDER OF PRECEDENCE (CLIN 6) 6
3.7 DOCUMENTATION 6
3.8 INSPECTIONS 7
3.9 QUALITY CONTROL 7
4 TYPE OF CONTRACT 7
5 EFFECTIVE DATE 8
6 SHIPPING AND DELIVERY 8
7 FORCE MAJEURE 10
8 PAYMENT 10
9 CONFORMITY TO THE SPECIFICATION 11
10 ADMINISTRATION AND ACCOUNTING PROCEDURES (GFDC) 11
11 PATENTS (GFDC) 12
12 FOREIGN ACCESS TO TECHNOLOGY (GFDC) 14
13 LIABILITY (GFDC) 16
14 SECURITY (GFDC) 17
15 REPORTING REQUIREMENTS (GFDC) 18
16 DATA RIGHTS (GFDC) 19
16.1 Definitions 20
16.2 Government Rights in Subject Technical Data and Copyright 21
16.3 Government Rights in Non-Subject Technical Data 21
16.4 LITTON AMECOM Rights in Technical Data and Copyright 21
16.5 STDC Rights in Subject Technical Data 21
16.6 STDC Rights in Non-Subject Technical Data 21
16.7 Release From Liability 22
16.8 Lower Tier Agreements 22
16.9 Use and Non-Disclosure Agreement 22
16.10 Markings 23
17 WARRANTY 24
18 LIMITATION OF LIABILITY 24
19 RESOLUTION OF DISPUTES AND CHOICE OF LAW 24
20 SEVERABILITY 25
21 NOTICES 25
22 ASSIGNMENT 26
23 DISCLOSURE AND PROTECTION OF INFORMATION 26
24 CHANGES 26
25 TERMINATION FOR CAUSE. 27
26 TERMINATION FOR CONVENIENCE 28
27 MODIFICATIONS 28
28 WAIVER 28
29 NEWS RELEASES 28
30 INCORPORATION BY REFERENCE 29
31 GOVERNING LAW 29
32 ENTIRE AGREEMENT AND ORDER OF PRECEDENCE (CLINs 1, 2, 3, 4, 5 and Option CLIN 6) 29
Sales Contract for tasks to be performed in support of the
Navy EarthMap Observer Program
THIS SALES CONTRACT FOR TASKS TO BE PERFORMED IN SUPPORT OF THE NAVAL EARTH MAP
OBSERVER (NEMO) PROGRAM (hereinafter referred to as the "Contract") is made and
entered into this 29th day of October 1998, (hereinafter referred to as the
"Effective Date") by and between Space Technology Development Corporation
(hereinafter referred to as "STDC"), a Virginia Corporation, having its offices
at 100 North Pitt Street, Suite 403, Alexandria, VA 22314, and LITTON SYSTEMS,
INC., AMECOM DIVISION (hereinafter referred to as "LITTON AMECOM"), a Maryland
Corporation, having its offices at 5115 Calvert Road, College Park, Maryland
20740-3898.
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1. RECITALS
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This agreement is made with reference to the following facts and objectives:
WHEREAS, STDC has plans to construct, launch, and operate a series of remote
sensing satellites in support of its Navy EarthMap Observer Program (NEMO);
WHEREAS, LITTON AMECOM is designing, developing, testing and producing On-Board
Processing Electronics, Brassboard Engineering Models, Command Telemetry and
Data Handling Software, Attitude Control Software and Test Equipment described
further herein which can be used in support of the NEMO Program;
WHEREAS, STDC and LITTON AMECOM have determined that they will mutually benefit
by entering into this Sales Contract for the work described herein.
NOW THEREFORE, in consideration of the covenants and mutual promises contained
herein, the parties agree as follows:
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2. ABBREVIATIONS AND DEFINITIONS
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2.1 NEMO - Navy EarthMap Observer
2.2 FFP - Firm Fixed Price
2.3 Effective Date - The last signature date of this Contract
2.4 GFDC - Government Flow Down Clause
2.5 MAC - Months after Contract Effective Date
2.6 Other Transaction - The Agreement between ONR and STDC to develop the
Navy EarthMap Observer dated 11 December 1997.
2.7 Invention - Any invention or discovery that is or may be patentable or
otherwise protectable under Title 35 of the United States Code.
2.8 Subject Invention - Means any invention of LITTON AMECOM conceived or
first actually reduced to practice in the performance of work under
this Contract.
2.9 Made - When used in relation to any invention means the conception or
first actually reduced to practice in the performance of work under
this contract.
2.10 SDR - Systems Design Review
2.11 PDR - Preliminary Design Review
2.12 CDR - Critical Design Review
2.13 TRR - Test Readiness Review
2.14 MRR- Mission Readiness Review
2.15 PMR - Program Management Review
2.16 TIMs - Technical Interchange Meetings
2.17 DRD - Data Requirement Description
2.18 ICD - Interface Control Document
2.19 I&T - Integration and Testing
2.20 CPET - Combined Performance and Environmental Test
2.21 NRL - Naval Research Lab
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3. SCOPE, DELIVERABLES & PRICES
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3.1 SCOPE
Overall Program Management for NEMO will be performed by STDC in conjunction
with its partner NRL. STDC and NRL have formed a NEMO Program Office which shall
provide all necessary management and planning to meet performance, schedule,
interfacing, technical and cost objectives and requirements of the NEMO Program.
LITTON AMECOM will support the NEMO Program Office in this effort to ensure all
program objectives under their cognizance are met in accordance with CLINs 1, 2,
3, 4, and 5 and delivery orders placed under CLIN 6.
LITTON AMECOM shall perform the tasks and associated efforts to be performed to
supply Non-recurring Engineering, A Thermal Vacuum Test to be performed at the
Naval Research Laboratory (NRL), a Brassboard Single String, a Flight Unit and
technical data for the NEMO Program. The Specification (Attachment A) is the
detailed technical description for the products described in CLINs 1, 2, 3, 4,
and 5. The Statement of Work (Attachment B) details the specific delivery
requirements, services, and reporting requirements necessary to perform the
functions for these items and provide other support services. The spacecraft bus
will undergo a complete Assembly Integration and Test (AIT) cycle as part of the
LS-400 assembly line process. At the completion of this activity, the OBPE will
be removed and the bus will be delivered to NRL with verification that
interfaces have been checked, verified and proven; the wiring harness having
been fully checked out and sensors and actuators have been fully qualified and
proven.
LITTON AMECOM will also provide all tooling necessary to accomplish the work
delineated by the Attachment A Specification. Furthermore, Attachments A and B
are hereby incorporated by reference and made a full and binding part of this
contract.
3.2 DELIVERABLES AND PRICES
LITTON AMECOM shall provide on a Firm Fixed price basis under CLINs 1, 2, 3, 4,
and 5 the following equipment and support to the NEMO Program in accordance with
the contract schedule and the Attachment A Specification and Attachment B
Statement of Work:
CLIN 1 - Non-recurring Engineering - $ 1,651,027.00
CLIN 2 - Thermal Vacuum Test conducted at NRL - $17,611.00
CLIN 3 - Brassboard Single String - $ 979,303.00
CLIN 4 - Flight Unit - $ 1,248,973.00
CLIN 5- Technical Data for CLINs 1- 4 - NSP
CLIN 6 - Technical Support - LITTON AMECOM will provide additional technical
support, at the fully burdened rate of $91.00 per hour, beyond what is provided
for under the basic contract to support STDC by attending certain meetings,
performing special analyses, and/or short term special studies as stated in
individual delivery orders. All Delivery Orders shall be placed in accordance
with paragraph 3.1 "Procedures for Delivery Orders" and also comply with
paragraphs 3.2 and 3.3. STDC is not obligated to place any delivery orders
during the term of this contract.
Total FFP for CLINs 1, 2, 3, 4, and 5 is $3,896,914.00
3.3 PROCEDURES FOR DELIVERY ORDERS (CLIN 6)
3.3.1 Each delivery order shall:
(a) comply with (3.3.2) below;
(b) be issued as a delivery order on an STDC Standard Form (Amendment
of Solicitation/Modification of Contract) in the case of a modification
to an order;
(c) be identified by this contract number;
(d) incorporate the terms and conditions of this contract by reference;
(e) set forth a detailed statement of work and the data to be
provided;
(f) create a Data Requirements Lists for the ordering of such data
requirements;
(g) set forth a delivery order maximum price;
(h) set forth packaging (preservation and packing)and marking
requirements for deliverables;
(i) specify any CFE or CFI applicable to that order;
(j) set forth STDC's required delivery or performance date and the
place of performance, indicating therein LITTON AMECOM's facility to be
utilized; and, in the event travel is required in the performance of
the work ordered, the locations at which such performance is necessary;
(k) be signed by the authorized STDC representative; and
(l) contain a travel itinerary.
3.3.2 Under no circumstances shall an order or a modification to an order
be issued prior to contract issuance.
3.3.3 The estimated delivery order dollars for the cost-type items may not be
exceeded in pursuit of technical objective without prior approval of
STDC.
3.3.4 The ordering period for this CLIN will be from date of contract award
through 60 days past a successful NEMO launch.
3.3.5 LITTON AMECOM shall promptly notify STDC (Ms. Nora Rumpf) if LITTON
AMECOM feels they have been tasked with work beyond the contracts SOW
which should be covered by a delivery order as provided for herein.
3.4 COMPENSATION - LABOR HOURS (DELIVERY ORDERS)
3.4.1 STDC will pay LITTON AMECOM for the performance of delivery orders
issued under this contract at the rate of $91.00 per man-hour and in
accordance with paragraphs 3.4.2 and 3.4.3 of this clause. The hourly
rates set forth covers all expenses, including wages, overhead, general
and administrative expense, profit, prorated vacation leave, sick
leave, and applicable insurance of all kinds and other allowable and
allocable costs, excluding any and all travel costs which are
reimbursable in accordance with paragraph (c) below. The amounts
payable to LITTON AMECOM shall be computed by multiplying the hourly
rate set forth by the number of direct labor hours performed.
3.4.2 Travel Costs. LITTON AMECOM shall be reimbursed for travel costs in
accordance with FAR 31.205-46 as limited by the Joint Travel
Regulations, Volume II and the following: (a) Where official company
travel can reasonably be planned in advance so as to take advantage of
available discounted standard or coach airfares, any expenses in excess
of those discounted fares are to be considered as, and segregated as
unallowable costs; and (b) Travel made for personal convenience,
including daily travel to and from work, shall not be reimbursed
hereunder.
3.4.3 Maximum Ordering. STDC shall not be obligated to pay LITTON AMECOM any
amount in excess of the maximum delivery order price set forth in any
delivery order issued under this contract. LITTON AMECOM shall not be
obligated to continue performance or to incur costs under any delivery
order if to do so would exceed the maximum delivery order price set
forth in the delivery order unless LITTON AMECOM has been notified in
writing by STDC that the maximum delivery order price for the delivery
order concerned has been increased by order modification. LITTON AMECOM
shall notify STDC in writing if LITTON AMECOM has reason to believe the
hourly rate payments, travel costs which will accrue in the performance
of the delivery order concerned will exceed the maximum delivery order
price set forth in the delivery order, or when added to all other
payments and cost previously accrued, will exceed the maximum ordering
price set forth in the order. If for any other reason LITTON AMECOM
believes that the maximum delivery order price set forth in any
delivery order should be increased, LITTON AMECOM shall promptly so
notify STDC in writing. The maximum delivery order price of any
delivery order may be increased by STDC, at any time during the period
covered by this contract. If LITTON AMECOM has reason to believe that
the total cost to STDC for the work called for in any delivery order
will be substantially less than the maximum delivery order price
specified therein, LITTON AMECOM shall promptly so notify STDC in
writing. STDC may, based upon such notification, decrease the ceiling
price of the delivery order concerned. Any increase or decrease in the
maximum order price of any delivery order shall be set forth in a
modification to the delivery order.
3.4.4 The term "ceiling price" wherever set forth will be read as "maximum
delivery order price" and, when used to refer to Contract Ceiling Price
shall be read as "Contract Maximum Ordering Price/Amount." When used in
conjunction with delivery order, "ceiling" shall be construed as
"maximum" delivery order amount or the "maximum" amount per cost
category such as travel, labor, and other direct costs as appropriate.
3.5 ADDITION OR SUBSTITUTION OF PERSONNEL (CLIN 6)
3.5.1 A requirement of this contract is to maintain stability of personnel
proposed in order to provide quality services. LITTON AMECOM shall
assign only the key personnel whose resumes were approved by STDC and
are listed in Attachment C, "Key Personnel."
3.5.2 LITTON AMECOM agrees that no key personnel substitutions or additions
will be made unless necessitated by compelling reasons including, but
not limited to, an individual's illness, death, termination of
employment, declining an offer of employment (for those individuals
proposed as contingent hires), or maternity leave. In such an event,
LITTON AMECOM shall promptly provide the information required by
paragraph (d) below to the Contracting Officer for approval prior to
the substitution or addition of key personnel. Proposed substitutions
of key personnel shall meet or exceed the qualifications of personnel
for whom they are proposed to replace. Fully compliant requests for
substitutions or additions shall be submitted, in writing, to the
Contracting Officer for approval at least fifteen working days in
advance of the proposed change.
3.5.3 Requests for key personnel changes shall provide a detailed explanation
of the circumstances necessitating the proposed substitutions or
additions, a complete resume of the proposed change, information
regarding the full financial impact of the change, and any other
information requested by the Contracting Officer.
3.5.4 Any addition or substitution of key personnel made pursuant to this
clause shall result in no increase in the fully burdened hourly rate
for the subject category set forth in Article 3. However, such rate may
be subject to downward negotiation if the addition or substitution
results in a decrease to the rate for the category in which the
substitution was made.
3.5.5 Noncompliance with the provisions of this clause will be considered a
material breach of the terms and conditions of the contract for which
STDC may seek any and all appropriate remedies including Termination
for Cause pursuant to the Termination clause.
3.5.6 Any additions or substitutions of key personnel will be approved in
writing by STDC by the Contracting Officer and the contract modified to
reflect the change.
3.6 TERMINOLOGY AND ORDER OF PRECEDENCE (CLIN 6)
The term "contract" and "delivery order" when used within a delivery
order are considered synonymous terms. The ordering procedures for
delivery orders placed under CLIN 6 are of a lesser order of precedence
than the "Completion Date" or "Term of Contract" clauses of the
contract. LITTON AMECOM is not authorized to incur costs on delivery
orders that are not in compliance with any of these clauses in the
contract. The Specification, Attachment A, and Statement of Work,
Attachment B, for the basic contract take precedence over the
statements of work attached to any delivery order, unless otherwise
noted.
3.7 DOCUMENTATION
3.7.1 LITTON AMECOM will maintain accurate documentation as necessary to
operate, maintain and manage configuration of all systems defined by
CLINs 1, 2, 3, and 4 delineated in the Attachment A Specification and
Attachment B Statement of Work as being within their scope as defined
within this contract. Deliverable data is summarized in Section 2.9.2
of the Statement of Work (Attachment B). Documentation required for
work ordered under CLIN 6 (Technical Support) shall be stated within
the individual delivery order placed. The actual data delivered to STDC
is acceptable in LITTON AMECOM format.
3.7.2 All documentation shall be delivered under cover of a transmittal
letter and shipped to STDC via common carrier to the addressee listed
in Article 21.1.
3.8 INSPECTIONS
3.8.1 LITTON AMECOM will provide and maintain an inspection system consistent
with standard LITTON AMECOM practices and procedures covering goods and
services under this contract and will tender only goods that have been
inspected and found to conform to this contract's requirements. LITTON
AMECOM will keep records evidencing inspections and their results and
will make these records available to STDC during contract performance
and for two (2) years after final payment.
3.8.2 All goods to be delivered hereunder will be subject to inspections,
examinations and the witnessing of final acceptance tests, during the
period of performance at LITTON AMECOM's facility, by STDC and NRL.
They will perform inspections and examinations in a manner that will
not unduly delay the work. Any delay due to such inspection and
examination activities shall be added day for day to the delivery dates
in the contract. LITTON AMECOM shall be entitled to recover any
reasonable additional costs incurred as a result of such delay.
3.8.3 If STDC performs an inspection or an examination on the premises of
LITTON AMECOM, LITTON AMECOM will furnish, and require its
subcontractor to furnish, without additional charge, all reasonable
facilities and assistance for the safe and convenient performance of
these duties.
3.8.4 LITTON AMECOM shall provide ten (10) calendar days notice prior to the
start of the scheduled final acceptance tests. LITTON AMECOM may limit
access with respect to areas exposing LITTON AMECOM's proprietary
processes or Government contract work. STDC shall comply will all
safety regulations and shall take all precautions required and
necessary to prevent the occurrence of any injury to persons or
property during such inspection at LITTON AMECOM's facility.
3.9 QUALITY CONTROL
LITTON AMECOM will provide and maintain a quality control system for the goods
and services purchased under this contract, and LITTON AMECOM will permit STDC
and NRL to review all necessary procedures, practices, processes, and related
documents as reasonably requested. The prevailing Quality Control Standard is
ISO 9001.
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4. TYPE OF CONTRACT
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LITTON AMECOM shall perform the services and deliver the items set forth in this
Contract for CLINs 1, 2, 3, 4, and 5 at the agreed upon firm fixed price of
$3,896,914.00. Any delivery orders placed under CLIN 6 shall be performed in
accordance with the labor rate of $91 per hour stated in Article 3 above. STDC
is under no obligation to place any orders under CLIN 6.
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5. EFFECTIVE DATE
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5.1 This contract shall become effective and binding upon the parties upon
the last signature date of this Contract. This effective date shall be
used when determining the completion dates set forth in the Project
Schedule which may be expressed in terms of "Months After Contract,
(MAC)" or "Days After Contract, (DAC)" unless a specific date is given.
(i.e., January 15, 1999.)
5.2 LITTON AMECOM's obligation to perform shall commence upon signature of
the Contract by both parties.
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6. SHIPPING AND DELIVERY
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CLIN Qty Product Description Delivery Date
----- ------ --------------------------------------- --------------------------------
1 Non-recurring Engineering
----- ------ --------------------------------------- --------------------------------
2 1 Thermal Vacuum Test conducted at NRL 21 September 1999
----- ------ --------------------------------------- --------------------------------
3 1 Brassboard Single String 01 April 1999
----- ------ --------------------------------------- --------------------------------
4 1 Flight Unit 30 September 1999
----- ------ --------------------------------------- --------------------------------
5 NA Technical Data for CLINs 1-4 As per individual entry
on Data Requirements
List
----- ------ --------------------------------------- --------------------------------
6 NA Technical Support As stated per individual
Delivery Order
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6.1 Shipping Instructions are as stated in the Attachment A Specification
and Attachment B Statement of Work and paragraphs 6.1.1, 6.1.2, and
6.1.3 below:
6.1.1 All goods are to be packed and packaged for protection in accordance
with best commercial practices and in such a manner so as to protect
from damage and deterioration in transit by road, rail or air. LITTON
AMECOM will be held responsible for all damages due to improper
packing, except for improper handling of the container such as to cause
damage to the contents if it is determined that the packaging was not
at fault.
6.1.2 Insurance. LITTON AMECOM will arrange, but STDC shall pay for, the
adequate replacement value insuring of all hardware shipments.
6.1.3 LITTON AMECOM shall provide ten (10) working days notification prior to
the expected date of shipment to the STDC in order to make the
necessary arrangements for transportation from the LITTON AMECOM's
facility.
6.2 LITTON AMECOM will adhere to the delivery and completion schedules
specified in this contract. If, at any time, LITTON AMECOM believes it
may be unable to comply with the delivery or completion schedules,
LITTON AMECOM will immediately notify STDC in writing of the probable
length of any anticipated delay and the reasons for it, and will
provide STDC with a written recovery schedule. LITTON AMECOM will
continue to notify STDC of any material change in the situation. Title
and risk of loss in the deliverable hardware shall pass to STDC at the
time of delivery of the hardware delivered by LITTON AMECOM to STDC at
NRL in Washington D.C. Acceptance is not conclusive as to latent
defects, fraud, or gross mistakes amounting to fraud. Failure by LITTON
AMECOM to meet the required delivery schedule for any item as stated in
this contract is cause for STDC to seek an equitable adjustment in
price to the contract.
6.3 The shipping address for all deliverable hardware and software shall be:
Receiving Officer
Naval Research Laboratory
455 Overlook Avenue
Building 49
Washington, D.C. 20375-5320
ATTN: Thomas Wilson, Code 8030
Telephone: 202-767-0794
Deliverable data items shall be shipped to STDC at the following
address:
Space Technology Development Corporation
100 North Pitt Street, Suite 403
Alexandria, VA 22314
ATTN: Nora Rumpf
Telephone: 703-518-4448
6.3 Final/Formal Acceptance of hardware will take place at the time of
shipment in accordance with the approved Acceptance Test Plan. This
shall be done at LITTON AMECOM by letter from STDC that will include
the following information: the contract and CLIN number, quantity,
assembly part number and description. This letter will also include a
statement that the acceptance of the listed items has been made by an
authorized representative of STDC and the delivered goods conform to
the contract, except as noted therein, or in supporting documents.
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7. FORCE MAJEURE
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7.1 LITTON AMECOM shall not be liable for delay or damages if prevented
from fulfilling its obligations by reason of force majeure causes,
including but not limited to acts of war, (whether declared or
undeclared) insurrection, terrorism, or acts of hostilities (such as
invasion, bombing, etc.), lockouts, strikes, riots, fires, earthquakes,
acts of God, unusually severe weather, any Government restrictions
covering the distribution or transport of components, parts or raw
materials necessary for the completion of the equipment (which includes
the U.S. Government denial or cancellation of the U.S. export license
for the System, if applicable), priority given to U.S. Government work
that has been designated as national emergency, mobilization of
technical personnel in general by reason of any cause beyond LITTON
AMECOM 's control, provided that LITTON AMECOM gives notice to STDC
according to paragraph 7.4 below.
7.2 The impact of Force Majeure on LITTON AMECOM 's subcontractors hereunder
shall be considered to be Force Majeure on LITTON AMECOM, provided that
LITTON AMECOM gives notice to STDC according to paragraph 7.4 below.
7.3 LITTON AMECOM's performance shall be extended by a reasonable period of
time corresponding to the delay caused by the Force Majeure and price
may be adjusted based on agreement of the parties.
7.4 LITTON AMECOM shall inform STDC in writing within 45 days after a fact
or event has been recognized by LITTON AMECOM to have occurred.
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8. PAYMENT
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8.1 STDC agrees to make milestone payments to LITTON AMECOM for work
performed under this Contract in accordance with successful completion
of the following:
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DATE PAYMENT CUM MILESTONE EVENT
PAYMENT
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16 June 1998 $100,000 $ 100,000 System Requirements Review
------------------ ------------ ---------------- ------------------------------------------------
18 August 1998 $611,333* $ 711,333 Preliminary Design Review
------------------ ------------- ---------------- ------------------------------------------------
1 August 1998 $611,334 $1,322,666 Commencement of Purchase Order Placement
------------------ ------------- ---------------- ------------------------------------------------
12 November 1998 $611,334* $1,934,000 Critical Design Review
------------------ ------------- ---------------- ------------------------------------------------
2 February 1999 $928,555* $2,862,555 Technical Readiness Review
------------------ ------------- ---------------- ------------------------------------------------
1 April 1999 $440,000 $3,302,555 CDH S/W Build 2 Delivery
------------------ ------------- ---------------- ------------------------------------------------
1 April 1999 $146,303 $3,448,858 Delivery of Brassboards
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30 September 1999 $398,056 $3,846,914 Delivery of Flight Unit
------------------ ------------- ---------------- ------------------------------------------------
29 October1999 $50,000 $3,896,914 Hardware Sell Off at NRL
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* 70% Paid for Successful Completion of Review, 30% paid for Successful Completion of Action Items
8.2 Payment shall be sent via wire transfer to LITTON AMECOM's remittance
address specified herein, net 30 days upon receipt of LITTON AMECOM's
invoice, unless alternative payment arrangement are put in place as
agreed to by STDC and LITTON AMECOM. Remittance Address:
Litton Systems Inc.
Amecom Division
NationsBank
Dallas, TX
ABA: 111-000-012
Account Number: 375-028-8140
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9. CONFORMITY TO THE SPECIFICATION
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9.1 Notwithstanding anything contained herein to the contrary, the
equipment required by this contract shall conform to the Specification
contained in the Attachment A Specification.
9.2 Minor deviations (i.e. deviations which do not impact the form, fit
functionality of the item) shall not be considered a deficiency
requiring correction by LITTON AMECOM and will be accepted by STDC upon
completion of the acceptance testing as set forth in the Attachment A
Specification.
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10. ADMINSTRATION AND ACCOUNTING PROCEDURES (GFDC)
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NOTE: LITTON AMECOM agrees that the following terms and conditions,
Articles 10 through 16, will flow down to them from STDC's agreement
with the ONR under Agreement N00014-98-3-0001. Any change to these
terms and conditions requires the concurrence and approval of the ONR
who are the final authority on these matters.
10.1 Administration
LITTON AMECOM shall implement administrative procedures, accounting
procedures and financial management systems in accordance with Section
21 - Standards for Financial Management Systems - of OMB Circular
A-110, "Uniform Administrative Requirements for Grants and Contracts
with Institutions of Higher Learning Education, Hospitals, and Other
Non-Profit Organizations," dated 93 Nov 19. For the purpose of this
Contract, the term "allowable expenditures" refers only to those
expenditures considered to be allowable in accordance with the Federal
Acquisition Regulation Part 31, Contract Cost Principles, as regards
for-profit, commercial businesses. As appropriate, the terms
"contractor", "contract", and "subcontract" in the FAR provision shall
be read as "Recipient", "Contract", and "subcontract", respectively.
Further, the allowability of any expenditure incurred in the
performance of any subaward conducted on a cost-reimbursement basis
shall be subject to those Federal cost principles applicable to the
particular type of organization concerned. For the purposes of this
Article, any subsequent agreements between STDC and NRL for performance
of work under the ONR/STDC Agreement and the ORASIS License Agreement
between STDC and NRL are separate agreements from a contract, grant,
cooperative agreement, or other transaction.
10.2 Accounting System
LITTON AMECOM shall maintain an established accounting system that
complies with generally accepted accounting principles, and with the
requirements of this Contract. Appropriate arrangements must have been
made for receiving, distributing and accounting for Federal funds. This
paragraph shall not be construed as requiring LITTON AMECOM to
establish any other systems extending beyond its current systems to
account for costs in accordance with generally accepted accounting
principles.
10.3. Applicability
Federal entities shall not be subject to the provisions of this
Article.
10.4 Lower Tier Agreements
LITTON AMECOM shall include this Article, suitably modified to identify
the Parties, in all subcontracts or lower tier agreements (exclusive of
teaming agreements), regardless of tier.
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11. PATENTS (GFDC)
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11.1 Definitions
"Invention" means any invention or discovery that is or may be
patentable or otherwise protected under Title 35 of the United States
Code.
"Subject" invention means any invention of LITTON AMECOM conceived or
first actually reduced to practice in the performance of work under
this Contract.
"Made" when used in relation to any invention means the conception or
first actual reduction to practice of such invention.
11.2 Allocation of Principal Rights
LITTON AMECOM retains the entire right, title, and interest
throughout the world to each subject invention. With respect to any
subject invention in which LITTON AMECOM retains title, the Federal
Government is hereby granted a nonexclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced for or on
behalf of the United States the subject invention throughout the world.
LITTON AMECOM agrees to execute or to have executed and promptly
deliver to STDC a confirmatory instrument necessary to establish or
confirm the license rights the Government has throughout the world in
those subject inventions to which LITTON AMECOM has title.
If LITTON AMECOM does not either promptly file a patent application
or intend to protect the subject invention as a trade secret with
appropriate confidentiality statements, LITTON AMECOM agrees to assign
the entire right, title, and interest throughout the world to each
subject invention to the Government, when requested by the Office of
Naval Research through STDC. If such title is assigned to the
Government, LITTON AMECOM will retain a nonexclusive royalty-free
license throughout the world in the assigned subject invention. LITTON
AMECOM's license extends to its domestic subsidiary and affiliates, if
any, within the corporate structure of which LITTON AMECOM is a party
and includes the right to grant sublicenses of the same scope to the
extent LITTON AMECOM was legally obligated to do so at the time the
Contract was awarded. The license is transferable only with the
approval of STDC and the Office of Naval Research except when
transferred to the successor of that part of LITTON AMECOM's business
to which the invention pertains.
11.3 Invention Disclosure
LITTON AMECOM will identify each subject invention, the inventor(s),
and this Contract under which the invention was made to STDC within two
months after the inventor discloses the subject invention in writing to
recipient personnel responsible for patent matters.
LITTON AMECOM agrees to include, within the specification of any
United States patent applications and any patent issuing thereon
covering a subject invention, the following statement, "This invention
was made with Government support under STDC/ONR Agreement
N00014-98-3-0001 awarded by the Office of Naval Research. The
Government has license rights in the invention."
11.4 Subcontracts
LITTON AMECOM will include this Article "PATENTS", suitably modified
to identify the parties, in all subcontracts or lower tier agreements
(exclusive of teaming agreements), regardless of tier, for
experimental, developmental or research work. Subject to the Government
obtaining the license rights in a subject invention provided by this
clause, LITTON AMECOM and the subcontractor may mutually agree to the
allocation of title and license rights to the subject invention. The
provisions of this article shall not apply to agreements with federal
entities.
11.5 Preference for United States Industry
LITTON AMECOM agrees that neither it nor any assignee will grant to
any person the exclusive right to use or sell any subject inventions in
the United States unless such person agrees that any products embodying
the subject invention or produced through the use of the subject
invention will be manufactured substantially in the United States.
However, in individual cases, the requirement for such an agreement may
be waived by STDC and the Office of Naval Research upon a showing by
LITTON AMECOM or its assignee that reasonable but unsuccessful efforts
have been made to grant licenses on similar terms to potential
licensees that would be likely to manufacture substantially in the
United States or that under the circumstances domestic manufacture is
not commercially feasible.
11.6 LITTON AMECOM shall include this provision, suitably modified to
identify the parties, in all subcontracts or lower tier agreements,
regardless of tier.
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12. FOREIGN ACCESS TO TECHNOLOGY (GFDC)
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Note: This Article shall remain in effect during the term of the Contract and
for two (2) years after completion.
12.1 Definitions
" Foreign Firm or Institution" means a firm or institution organized
or existing under the laws of a country other than the United States,
its territories, or possessions. The term includes, for purposes of
this Contract, any agency or instrumentality of a foreign Government;
and firms, institutions or business organizations that are owned or
substantially controlled by foreign Governments, firms, institutions,
or individuals.
"Know-How" means all information including, but not limited to
discoveries, formulas, materials, inventions, processes, ideas,
approaches, concepts, techniques, methods, software, programs,
documentation, procedures, firmware, hardware, technical data,
Specification, devices, apparatus and machines.
"Technology" means discoveries, innovations, know-how and inventions,
whether patentable or not, including computer software, recognized
under U.S. law as intellectual creations to which rights of ownership
accrue, including, but not limited to, patents, trade secrets,
maskworks, and copyrights developed under this Contract.
12.2 General
The Parties agree that research findings and technology developments
in NEMO technology may constitute a significant enhancement to the
national defense, and to the economic vitality of the United States.
Accordingly, access to important technology developments under this
Contract by Foreign Firms or Institutions must be carefully controlled.
The controls contemplated in this Article are in addition to, and are
not intended to change or supersede, the provisions of the
International Traffic in Arms Regulation (22 CFR Part 121 et seq.), the
DoD Industrial Security Regulation (DoD 5220.22-R) and the Department
of Commerce Export Regulation (15 CFR Part 770 et seq.)
12.3 Restrictions on Sale or Transfer of Technology to Foreign Firms or
Institutions
12.3.1 In order to promote the national security interests of the United
States and to effectuate the policies that underlie the regulations
cited above, the procedures stated in subparagraphs 2, 3, and 4 below
shall apply to any transfer of Technology. For purposes of this
paragraph, a transfer includes a sale of the company, and sales or
licensing of Technology. Transfers do not include:
(a) sales of products, images or components, or
(b) licenses of software or documentation related to
sales of products or components, or
(c) transfer to foreign subsidiaries of LITTON AMECOM
participants for purposes related to this Contract, or
(d) transfer which provides access to Technology to a
Foreign Firm or Institution which is an approved source of
supply or source for the conduct of research under this
Contract provided that such transfer shall be limited to
that necessary to allow the firm or institution to perform
its approved role under this Contract.
12.3.2 LITTON AMECOM shall provide timely notice to the Government of any
proposed transfers from LITTON AMECOM of Technology developed with
Government funding under this Contract to Foreign Firms or
Institutions. If the Government determines that the transfer may have
adverse consequences to the national security interests of the United
States, LITTON AMECOM, its vendors, and the Government shall jointly
endeavor to find alternatives to the proposed transfer which obviate or
mitigate potential adverse consequences of the transfer but which
provide substantially equivalent benefits to LITTON AMECOM.
12.3.3 In any event, LITTON AMECOM shall provide written notice to STDC who
will notify the ONR Agreement Technical Manager and Grants Officer of
any proposed transfer to a foreign firm or institution at least sixty
(60) calendar days prior to the proposed date of transfer. Such notice
shall cite this Article and shall state specifically what is to be
transferred and the general terms of the transfer. Within thirty (30)
calendar days of receipt of STDC's written notification, the Grants
Officer shall advise STDC whether it consents to the proposed transfer
and STDC will then notify LITTON AMECOM of the Government's decision.
In cases where the Government does not concur or sixty (60) calendar
days after receipt and the Government provides no decision, LITTON
AMECOM may utilize normal Claims, Disputes, and Appeals procedures. No
transfer shall take place until a decision is rendered.
12.3.4 Except as provided in subparagraph 1 above and in the event the
transfer of Technology to Foreign Firms or Institutions is approved by
the Government, LITTON AMECOM shall (a) refund to the Government funds
paid for the development of the Technology and (b) negotiate a license
with the Government to the Technology under terms that are reasonable
under the circumstances.
12.4 Lower Tier Agreements
LITTON AMECOM shall include this Article, suitably modified to identify
the Parties, in all subcontracts or lower tier agreements (exclusive of
teaming agreements), regardless of tier, for experimental,
developmental, or research work.
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13. LIABILITY (GFDC)
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13.1 Hold Harmless
LITTON AMECOM agrees to indemnify and hold harmless and defend STDC,
the Government and its employees and agents, against any liability or
loss for any claim made by an employee or agent of LITTON AMECOM, or
persons claiming through them, for death, injury, loss or damage to
their person or property arising in connection with this contract,
except to the extent that such death, injury, loss or damage arises for
the negligence of STDC, the Government or its employees."
13.2 Other Liability
Neither the Government nor STDC, shall be liable to LITTON AMECOM or
the other parties identified herein, whether directly, or by way of
contribution or indemnity for any claim made by any person or other
entity for personal injury or death, or for property damage or loss,
arising in any way from this Contract, including, but not limited to,
the later use, sale or other disposition of research and technical
developments, whether contributed by either parties, pursuant to this
Contract, except as provided under the Federal Tort Claims Act (28
U.S.C. 2671 et seq.) or other Federal law where sovereign immunity has
been waived. LITTON AMECOM shall indemnify STDC and the Government
against all such claims or proceedings and shall hold the Government
harmless for any resulting liabilities and lawsuits provided LITTON
AMECOM is reasonably notified of such claims and proceedings.
13.3 Infringement
LITTON AMECOM agrees not to hold the U.S. Government or STDC
responsible for any and all patent infringement cases arising out of
the performance of LITTON AMECOM under this Contract. In addition,
LITTON AMECOM shall indemnify the Government and STDC against all
claims and proceedings for actual or alleged direct or contributory
infringement of, or inducement to infringe, any US patent, trademark,
or copyright arising out of the performance of LITTON AMECOM under this
Contract and LITTON AMECOM shall hold the Government and STDC harmless
from any resulting liabilities and losses provided LITTON AMECOM is
reasonably notified of such claims and proceedings.
13.4 Environmental Liability
LITTON AMECOM is solely responsible for achieving compliance with
all environmental laws, including the preparation and submission of all
licenses and permit applications required under Federal, State, or
local laws or regulations. LITTON AMECOM shall not name STDC, the
United States, the Department of the Navy (DON), or any other
Government agency, instrumentality or employee as an owner, operator or
in any other capacity on any license or permit application required
under environmental laws unless written consent is first obtained from
an authorized agent of the Federal agency or instrumentality to be
named. LITTON AMECOM shall not accept issuance of any permit or license
which purports to impose upon the United States, DON, or any Government
agency, instrumentality or employee any obligation or liability for any
operations or activities covered by such permit or license except upon
prior written consent from an authorized agent of the Federal agency or
instrumentality to be named. LITTON AMECOM agrees to hold harmless,
indemnify and defend STDC, the United States, DON, and employees and
instrumentalities thereof from and against any and all liability, cost,
claims, fines, penalties and suits of any kind for injury to or death
of any persons and for loss or damage to any property, including
natural resources, occurring in connection with, or in any way incident
to the release of any contaminant, or any noncompliance with any
Federal, State, or local laws or regulations. This responsibility to
hold harmless, indemnify, and defend the United States and STDC, shall
exist even if the release or noncompliance is discovered after the date
this Contract expires.
13.5 Lower Tier Agreements
LITTON AMECOM shall include this Article, suitably modified to identify
the Parties, in all subcontracts or lower tier agreements (exclusive of
teaming agreements), regardless of tier.
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14. SECURITY (GFDC)
- --------------------------------------------------------------------------------
14.1 LITTON AMECOM's personnel will not have access to classified United
States Government information under this Contract. If security
restrictions should happen to apply to certain aspects of the ONR/STDC
Agreement, the Grants Officer will inform STDC and STDC will inform
LITTON AMECOM. LITTON AMECOM shall promptly notify STDC and STDC will
inform ONR if information is developed which might, if disclosed,
affect the national security adversely. Written concurrence from the
Grants Officer must be obtained prior to disclosure of such
information. Do not discuss the information over the telephone.
14.2 The parties agree to confer and consult with each other prior to
publication or other public disclosure of the results of work under
this Contract to ensure that no classified, proprietary information,
military critical technology or other controlled information is
released. Prior to submitting a manuscript for publication or before
any other public disclosure, each party will offer the other party
ample opportunity to review such proposed publication or disclosure, to
submit objections, and to file applications for patents in a timely
manner.
14.3 Controlled Information. The parties understand that information and
materials provided pursuant to or resulting from this Contract may be
export controlled, classified, or unclassified sensitive and protected
by law, executive order or regulation. Each party is responsible for
compliance with all applicable laws and regulations. Nothing in this
Contract shall be construed to permit any disclosure in violation of
those restrictions.
14.4 Lower Tier Agreements. LITTON AMECOM shall include this Article,
suitably modified to identify the Parties, in all subcontracts or lower
tier agreements (exclusive of teaming agreements), regardless of tier.
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15. REPORTING REQUIREMENTS (GFDC)
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15.1 LITTON AMECOM shall submit reports to STDC as set forth below.
15.2 All reports and correspondence submitted under this Contract shall
include the Contract Number and be addressed as follows:
Space Technology Development Corporation
100 North Pitt Street, Suite 403
Alexandria, VA 22314
Attention: Nora Rumpf
15.3 Lower Tier Agreements. LITTON AMECOM shall include this Article,
suitably modified to identify the Parties, in all subcontracts or lower
tier agreements (exclusive of teaming agreements), regardless of tier.
15.4 Financial Reporting
15.4.1 Audit Reports -- LITTON AMECOM shall ensure that if an independent
auditor is used for this Contract, copies of any audits conducted shall
be provided to the Government. At a minimum, a certified statement from
the independent auditor shall evidence that LITTON AMECOM has/has not
complied with all requirements of this Contract.
The parties agree that Litton is not required to invest company
funds in the NEMO Spacecraft Controller. However, if and when Litton's
actual costs exceed the contract value, Litton will voluntarily provide
this information to STDC in its regular progress reporting, no less
frequently than quarterly within four (4) weeks of the end of the
calendar quarter. STDC will use Litton's information to support its
obligations for industrial contribution to the ONR under the OT.
15.5 Invention Reports -- In accordance with Article 3 LITTON AMECOM shall
file annual Invention (Patent) Reports as of the close of the fiscal
year and at the end of the term for this Contract. Annual reports are
due 60 days after the close of the Government Fiscal Year and final
reports are due 6 months after the expiration of the final research
period. LITTON AMECOM shall use DD Form 882, Report of Inventions and
Subcontracts, to file an inventions report. Negative reports are also
required.
15.6 Benefits Reports -- LITTON AMECOM shall provide STDC with an annual
benefits report for work funded hereunder. The report shall address, in
quantifiable terms, the commercial, Governmental, and intangible
benefits resulting from Contract funding. The parties agree to
informally coordinate content and format for this report in advance of
final submittal to assure a satisfactory report. The report is to be
submitted at the end of each Government Fiscal Year.
15.7 Annual and Final Reporting of Federally Owned Equipment -- (Article
15.7 will be applicable if and only if federally owned property is used
by LITTON AMECOM in performance of this contract. LITTON AMECOM has no
such property at time of contract award, and therefor no report will be
required unless and until federally owned property is provided to
LITTON AMECOM.) LITTON AMECOM shall annually submit an inventory of
federally owned property in their custody, which was acquired or used
under this Contract, to STDC and to any identified property
administrator. A final inventory of all capital equipment acquired with
federal funds and all federally owned property is due by the Contract
expiration date. It is to be submitted to STDC for purposes of Contract
closeout and final property disposition and records reconciliation.
15.8 Final Report -- LITTON AMECOM shall submit or otherwise provide a Final
Report making full disclosure of all major developments by LITTON
AMECOM upon completion of the Contract or within sixty (60) days of
termination of the Contract. With the approval of STDC and the
Agreement Technical Manager, reprints of published articles may be
attached to the Final Report.
The Final Report shall be marked with a distribution statement to
denote the extent of its availability for distribution, release, and
disclosure without additional approvals or authorizations.
15.9 Studies -- LITTON AMECOM may be requested to participate in Dual Use
Application Program (DUAP) assessment studies. These studies will be
conducted by DoD to evaluate the success of DUAP in achieving its
goals. Studies will likely include occasional questionnaires and
interviews to determine military usefulness, commercial viability, and
other characteristics of projects and technologies funded by DUAP. The
studies may be conducted during the performance period of the ONR/STDC
Agreement and up to five (5) years after the close of the performance
period.
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16. DATA RIGHTS (GFDC)
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Rights in Technical Data (including Computer Software)
16.1 Definitions
16.1.1 "Government purpose" means any activity in which the United States
Government is a party, including cooperative agreements with
international or multi-national defense organizations, or sales or
transfers by the United States Government to foreign governments or
non-commercial international organizations for distribution only within
such foreign governments and organizations. Government purposes include
competitive procurement, but do not include the rights to use, modify,
reproduce, release, perform, display, or disclose technical data for
commercial purposes or authorize others to do so.
16.1.2 "Government purpose rights" means the rights to use, modify, reproduce,
release, perform, display, or disclose technical data within the
Government without restriction; and release or disclose technical data
outside the Government and authorize persons to whom release or
disclosure has been made to use, modify, reproduce, release, perform,
display, or disclose that data for a Government purpose.
16.1.3 "Imagery Data" means subject technical data generated as a result of
the imaging operations of a spacecraft after it is on orbit.
16.1.4 "Non-imagery data" means all subject technical data that is not imagery
data.
16.1.5 "Non-subject technical data" means all technical data produced outside
of this Agreement.
16.1.6 "Subject technical data" means all technical data first produced in the
performance of work under this Agreement.
16.1.7 "Technical data" means recorded information, regardless of the form or
method of the recording, of a scientific or technical nature (including
all forms of computer software, programs and documentation). The term
does not include computer software or data incidental to contract
administration, such as financial or management information. Technical
data is divided into subject technical data and non-subject technical
data. Subject technical data is further divided into imagery data and
non-imagery data.
16.1.8 "Agreement Purpose Rights" means the rights to use, modify, reproduce,
release, perform, display, or disclose technical data within the
Government for the purpose of executing the NEMO program; and to
release or disclose technical data outside the Government and authorize
persons to whom release or disclosure has been made to use, modify,
reproduce, release, perform, display, or disclose that data for the
Agreement purpose only, provided that LITTON AMECOM's written
permission to release the data outside the Government has been granted.
16.1.9 "NEMO Program" means the first and only satellite built under the Other
Transaction. This satellite mission duration is planned to be 3 years
from launch, but may operate for 5 years or more. The NEMO program is
all activities leading up to launch and satellite ground operations
throughout the mission not to exceed five (5) years from launch.
16.2 Government Rights in Subject Technical Data and Copyright
16.2.1 The Government shall have government purpose rights in non-imagery
data.
16.2.2 Copyright license. LITTON AMECOM grants a nonexclusive,
nontransferable, irrevocable, royalty-free copyright license throughout
the world in the exclusive rights in copyrighted works of authorship
(17 U.S.C. Section 106) prepared pursuant to this Agreement to the
Government for government purposes.
16.3 Government Rights in Non-Subject Technical Data
The Government shall have agreement purpose rights in non-subject
technical data that is furnished under this Agreement; provided that
the Government does not have greater rights in the non-subject
technical data from other contracts, grants, or agreements.
16.4 LITTON AMECOM Rights in Technical Data and Copyright
16.4.1 LITTON AMECOM shall be the owner of copyright in works of authorship
prepared under this agreement that may be copyrighted under Title 118,
U.S. Code.
16.4.2 All rights not granted to the Government or STDC in technical data,
whether subject data or non-subject data, are retained by LITTON
AMECOM.
16.5 STDC Rights in Subject Technical Data
LITTON AMECOM shall grant to STDC unlimited rights in subject technical
data first developed under this contract and not developed at Litton
private expense. Notwithstanding the rights hereby granted to STDC
under this provision, LITTON AMECOM will retain ownership of all
subject technical data.
16.6 STDC Rights in Non-Subject Technical Data
16.6.1 The parties agree that the following technical data was or will be
developed at LITTON AMECOM private expense and is, therefore,
non-subject technical data:
16.6.1.1 All software source code, object code, load modules and
associated computer files
16.6.1.2 All software documentation including Software Requirement
Specification, ACS Users Guide, but excluding the Command
telemetry documentation and Interface Control Documentation.
16.6.1.3 All hardware drawings, schematics, and parts lists.
16.6.2 With regard to the data described in 16.6.1.1, LITTON AMECOM agrees to
convey this data to STDC, granting STDC the right to modify any code
solely for the purpose of correcting any LITTON AMECOM created defect
And/or use the software to run on STDC System Hardware delivered under
this subcontract.
16.6.3 With regard to the data described in 16.6.1.2 and 16.6.1.3, LITTON
AMECOM agrees to convey this data to STDC, granting STDC agreement
purpose rights in it.
16.7 Release From Liability
LITTON AMECOM agrees to release the Government from liability for any
release or disclosure of technical data made in accordance with Article
16.9 and to seek relief solely from the party who has improperly used,
modified, reproduced, released, performed, displayed, or disclosed
LITTON AMECOM data marked with restrictive legends.
16.8 Lower Tier Agreements
Whenever any technical data is to be obtained from a subcontractor or
supplier for delivery to the Government under this Agreement, LITTON
AMECOM shall use this same article in the subcontract or other
contractual instrument, and require its subcontractors or suppliers to
do so, without alteration, except to identify the parties.
16.9 Use and Non-Disclosure Agreement
The Government shall not release or disclose technical data outside the
Government in which it has agreement purpose rights unless LITTON
AMECOM has given permission and the intended recipient has signed a
non-disclosure agreement with LITTON AMECOM.
16.9.1 The original of the Use and Non-Disclosure Agreement is to be provided
to LITTON AMECOM at:
LITTON Systems, Inc.
AMECOM Division
5115 Calvert Road
College Park, MD 29740
16.9.2 A copy of the Use and Non-Disclosure Agreement is to be provided to
the Government at:
Associate Counsel (Intellectual Property)
Attn: ONR/OOCC
Ballston Tower One
800 North Quincy Street
Arlington VA 22217-5660
16.10 Markings
16.10.1 LITTON AMECOM may only assert restrictions on the Government's rights
in the technical data to be delivered under this contract by marking
the deliverable data or software subject to restriction.
16.10.2 LITTON AMECOM shall conspicuously and legibly mark the appropriate
legend on all technical data and computer software that qualify for
such markings. The legend shall be place on the transmittal document
or storage container and, for printed material, each page of the
printed material containing technical data for which restrictions are
asserted. Notwithstanding the requirement that each page of printed
material be marked, copyright notices may be placed on the data in
accordance with applicable U.S. copyright laws.
16.10.3 The following legends shall be used:
16.10.3.1 (Beginning of Legend)
AGREEMENT PURPOSE RIGHTS
Contract Number
Contractor Name
Contractor Address
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are
restricted by the Data Rights clause in the above contract to
use in executing the NEMO program as defined in
N00014-98-3-0001, Article 8, and STDC-NEMO-98-0009, Article
16. Any reproduction of technical data or portions thereof
marked with this legend must also reproduce the markings.
(End of Legend)
16.10.3.2 (Beginning of Legend)
GOVERNMENT PURPOSE RIGHTS
Contract Number
Contractor Name
Contractor Address
The Government's rights to use, modify, reproduce, release,
perform, display, or disclose these technical data are
restricted by the Data Rights clause in the above contract to
government purposes as defined in N00014-98-3-0001, Article 8,
and STDC-NEMO-98-0009, Article 16. Any reproduction of
technical data or portions thereof marked with this legend
must also reproduce the markings.
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17. WARRANTY
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17.1 LITTON AMECOM warrants that all goods furnished under this contract
will be free from defects in material and workmanship, will conform
with all requirements of this contract and will be free from defects in
design as performed by Litton. Any goods corrected will be covered by
this warranty.
17.2 If LITTON AMECOM breaches this warranty, STDC may, at no increase in
contract price, require LITTON AMECOM to promptly repair or replace, at
LITTON AMECOM's election, defective or non-conforming goods.
17.3 The period of Warranty shall be a period of twenty-four (24) months
from the date on which the hardware has been delivered and accepted
provided final acceptance is at LITTON AMECOM at the time of shipment.
Otherwise warranty will be for a period of 24 months after delivery.
Any warranty claim must be made within this specified time period.
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18. LIMIATION OF LIABILITY
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18.1 STDC agrees that LITTON AMECOM's total liability to STDC and all
liabilities arising out of or related to this contract, from any cause
or causes, and regardless of the legal theory, including breach of
contract, warranty, negligence, strict liability, or statutory
liability, shall not, in the aggregate, exceed the amounts paid to
LITTON AMECOM under the Contract, or under the specific delivery order
at issue, whichever is less.
18.2 In no event shall either LITTON AMECOM or STDC be liable to the other
for any special, indirect, incidental or economic (including, but not
limited to lost profits and lost business opportunity) damages,
regardless of the legal theory under which such damages are sought, and
even if the parties have been advised of the possibility of such
damages.
18.3 Any claim by STDC against LITTON AMECOM relating to this contract,
other than in warranty, must be made in writing and presented to LITTON
AMECOM within one year after the earlier of: (1) the date on which
STDC accepts the deliverable at issue; or (2) the date on which LITTON
AMECOM completes performance of the services specified in this
contract.
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19. RESOLUTION OF DISPUTES AND CHOICE OF LAW
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19.1 This Contract shall be governed by and construed under the laws of the
Commonwealth of Virginia without regard to those laws relating to
conflict of laws.
19.2 Should any disputes or differences of any kind arise between STDC and
LITTON AMECOM, in connection with/or arising out of this Contract, or
the performance hereunder, these will be settled by mutual agreement
which after having been written and signed by both parties will become
final and binding upon both Parties.
19.3 If no binding agreement can be reached, then STDC and LITTON AMECOM
will have the right to proceed according to the Rules of the American
Arbitration Association ("AAA") for arbitration in the Commonwealth of
Virginia, United States of America before a panel of three arbitrators,
to obtain a decision which will be final, binding and irrevocable upon
both STDC and LITTON AMECOM and not subject to any direct or indirect
legal means.
19.4 Each party shall appoint one member of the arbitration panel and these
two members shall appoint the third member. The three Arbitrators
appointed by the said rules will have full power to review all the data
they consider necessary for deciding upon the dispute.
19.5 The judgment rendered by the Arbitrator(s) upon the award may be
entered in any court having jurisdiction for the purposes of obtaining
an order of enforcement or judicial acceptance of the award, as the
case may be. STDC and LITTON AMECOM hereby waive any immunity,
sovereign or otherwise, that it would otherwise have to such
jurisdiction and agree that their respective rights, obligations and
liabilities hereunder shall be determined in the same manner and to the
same extent as those of a private litigant under like circumstances.
19.6 The Arbitrator's award may include compensatory damages against either
party, but under no circumstances will the Arbitrators be authorized
to, nor shall they award, punitive damages or multiple damages against
either party.
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20. SEVERABILITY
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20.1 If any phrase, clause, sentence, or paragraph, or combination of same
in this Contract contravenes the applicable laws of the United States
or of any state or jurisdiction thereof, such phrase, clause, sentence,
paragraph or combination of same shall be inoperative in such state or
jurisdiction and the remainder of this Contract shall remain binding on
the parties hereto. In such event the parties hereto shall perform this
Contract in a manner which is both legally valid and most closely
represents the intent of the phrase, clause, sentence, paragraph, or
combination of same which was made inoperative.
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21. NOTICES
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21.1 All notices, certificates, acknowledgments and other reports hereunder
shall be in writing and shall be deemed properly delivered when duly
mailed by certified letter to the other party at its address as
follows, or to such other address as either party may by written
notice, designate to the other.
LITTON AMECOM Space Technology Development Corp.
---------------------------------- ------------------------------------
Litton Systems Inc. 100 North Pitt Street, Suite 403
Amecom Division Alexandira, Va 22314
5115 Calvert Road Attn.: Ms. Nora Rumpf
College Park, Maryland 20740-3898
Attn.: Paul Quattrone
21.2 All notices, requests and demands given or made under this Contract
shall be in writing and shall be delivered either in person or shall be
sent by facsimile or by registered air mail or equivalent with postage
prepaid. Confirmation is required only when requested by the
originator. Notice shall be deemed to have been given on the day when
mailed or sent by facsimile, addressed to the other party.
21.3 Either party may change its address or point of contact by giving
notice of such change in writing and delivered by registered air mail
or other means confirmed by both parties.
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22. ASSIGNMENT
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22.1 This Contract shall not be assigned by either party, without the prior
written consent of the other, except that LITTON AMECOM, may, upon
written notification to STDC, assign that portion of work which may be
scheduled to be performed by LITTON AMECOM in whole or in part to a
subsidiary or affiliate of LITTON AMECOM who performs work in the same
industry.
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23. DISCLOSURE AND PROTECTION OF INFORMATION
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23.1 The Parties may desire to disclose proprietary information to each
other from time to time during performance of this Contract. Disclosure
and use of such proprietary information shall be handled in accordance
with Attachment D, Non-Disclosure Agreement.
23.2 All data provided during the course of this contract is subject to the
Non-Disclosure Agreement signed by STDC and LITTON AMECOM, and shall
become an Exhibit to this contract.
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24. CHANGES
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24.1 Either party may, at any time, request a change or modification to the
Specification, Statement of Work or services required under this
Contract, including but not limited to increases or decrease in
quantities of deliverable items, or changes to the method of shipment.
Such requested changes shall not become binding until the changes have
been confirmed in writing and mutually agreed upon by both parties.
24.2 LITTON AMECOM will advise STDC if a change requires a modification to
the delivery schedule or change in Contract price, in which case,
LITTON AMECOM shall submit a change proposal and the parties shall
negotiate in good faith any equitable adjustment required to the
Contract price, delivery schedule and other terms and conditions.
LITTON AMECOM may make changes which do not degrade the usefulness,
effectiveness, quality, performance or manufacturing process of the
items, and does not adversely affect the utility of the particular
equipment being changed with other equipment of the Contract and for
which there is no impact on Contract price or delivery.
24.3 LITTON AMECOM shall be entitled to an equitable adjustment in the
contract price and/or schedule in the event actions or inactions by
STDC require LITTON AMECOM to expend additional effort to perform the
work required under this Contract.
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25. TERMINATION FOR CAUSE
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25.1 Either party may terminate this Contract in whole or in part, for cause
due to an Event of Default as defined in this Clause, by giving written
notice thirty (30) days in advance of the date of termination. The
notice shall specify the extent to which performance of work under this
Contract is terminated and the reasons therefor.
25.2 The following definitions of an "Event of Default" should be used to
establish the criteria under which a termination for cause becomes a
fair and reasonable action to mitigate damage.
(i) LITTON AMECOM (1) fails to materially perform in accordance
with the terms of this Contract, which is not remedied
within 30 days after actual receipt of written notice
thereof or (2) commits a default in violation of this
Contract which is not remedied within thirty (30) days after
actual receipt of written notice thereof, or (3) becomes
insolvent or has a bankruptcy petition filed against it
which petition it is unable to have dismissed within sixty
(60) days of such filing, or (4) executes an assignment of
a majority or more of its assets for the benefit of
creditors, or (5) has a receiver appointed for any reason.
Or:
(ii) STDC (1) fails to materially perform those actions detailed
in the Attachment A, Statement of Work, which are necessary
to allow LITTON AMECOM to perform its obligations under this
Contract, or (2) fails to make payment when due as provided
for in this Contract, or (3) commits a default In violation
of this Contract which is not remedied within thirty (30)
days after actual receipt of written notice thereof, or (4)
either STDC or its partners becomes insolvent or have a
bankruptcy petition filed against either which petition
neither STDC or its partners are able to have dismissed
within sixty (60) days of such filing, or (5) has a receiver
appointed for any reason.
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26. TERMINATION FOR CONVENIENCE
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26.1 It is mutually agreed that STDC shall not terminate this Contract for
its convenience, in whole or in part, unless the Other Transaction has
been correspondingly terminated for convenience by the Government. Any
such termination of the Contract, in whole or in part, shall parallel
the Government's whole or partial termination for convenience of the
Other Transaction. In the event of a Termination for Convenience,
Litton will be entitled to an equitable relief as enumerated by the
submission of a termination proposal consistent with the guidelines
established under FAR 52-249-2. In the event, however, the Other
Transaction is extended, reorganized, restructured or placed under
another Government contract or subcontract, to be performed by STDC or
successor in interest, so that the work to be performed by LITTON
AMECOM is nevertheless required by the Government although in an
extended, reorganized or restructured form, LITTON AMECOM shall
continue to participate in such performance and the parties shall
negotiate in good faith to arrive at mutually acceptable price,
schedule, terms and conditions.
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27. MODIFICATIONS
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27.1 No modification, amendment, supplement to or waiver of this Contract
shall be binding upon the parties unless made in writing and signed by
duly authorized representatives of both parties.
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28. WAVIER
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28.1 No covenant, term, or condition of this Contract may be waived except
by written consent of the party against who the waiver is claimed and
the waiver of any other term, covenant or condition of this Contract
shall not be deemed a waiver of any subsequent breach of the same or
any other term, covenant or condition of this Contract.
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29. NEW RELEASES
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29.1 Any news release, public announcement, advertisement or publicity
released by either party concerning this Agreement, any proposals, any
resulting contracts, or any subcontracts to be carried out hereunder
will be subject to prior approval of the other party which approval
shall not unreasonably be withheld, except that this Contract and the
terms thereof may be made known to the U.S. Government. Any such
publicity shall give due credit to the contribution of each party.
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30. INCORPORATION BY REFERENCE
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30.1 The following attachments referred to herein and attached hereto are
hereby incorporated by reference and made an integral part of this
Contract:
Attachment A Specification
Attachment B Statement of Work
Attachment C LITTON AMECOM - Key Personnel
Attachment D Non-Disclosure Agreement
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31. GOVERNING LAW
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31.1 This Contract shall be enforced and interpreted under the laws of the
Commonwealth of Virginia, exclusive of the conflict of laws rules
thereof.
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32. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE (CLINs 1,2,3,4,5,
and Opion CLIN 6)
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32.1 This document sets forth the entire agreement between the parties as to
the subject matter hereof and supersedes all prior discussions and
letter contracts between them, and neither of the parties shall be
bound by any conditions, definitions, warranties, or representations
with respect to any of the terms or conditions hereof other than as
expressly provided herein or as duly set forth on or subsequent to the
effective date of this Contract duly signed by the party to be bound
thereby by a duly authorized officer or representative of such party.
32.2 The following documents are listed in descending order of precedence
and this order of precedence shall apply should there be any conflict
in terms of performance under this Contract:
1) Contract Terms and Conditions contained herein (Articles 1
through 32.)
2) The Specification (Attachment A)
3) The Statement of Work (Attachment B)
4) Other attachments, documents, and standards referenced in this
Contract.
32.3 Delivery Orders placed under CLIN 6 are considered stand-alone
contracts and are subject to the order of precedence clause stated at
Article 3.4.
32.4 This document has been prepared jointly by the parties. Any ambiguity
that may be discovered in this Contract shall not be summarily
determined to the benefit of any one particular party.
IN WITNESS WHEREOF, the parties have caused this Contract to be duly signed and
executed in duplicate originals by its duly authorized representative.
LITTON SYSTEMS, INC. SPACE TECHNOLOGY
AMECOM DIVISION DEVELOPMENT CORPORATION
/S/ JOHN C. DONAHUE /S/ LENORE M RUMPF
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Signature Signature
John C. Donahue Lenore M. Rumpf
Vice-President Contracts Administration
Name and Title: Name and Title:
Date: October 29, 1998 Date: October 29, 1998