SALES CONTRACT
BETWEEN
SCIENCE APPLICATIONS INTERNATIONAL CORP.
AND
SPACE TECHNOLOGY DEVELOPMENT CORP.
CONTRACT NUMBER: STDC-98-NEMO-0003
Dated: 30 March 1998
STDC-98-NEMO-0003 Page
TABLE OF CONTENTS
1. RECITALS................................................................1
2. ABBREVIATIONS AND DEFINITIONS...........................................2
3. SCOPE; ITEMS TO BE SUPPLIED; DELIVERABLES; PRICES.......................2
4. TYPE OF CONTRACT........................................................7
5. EFFECTIVE DATE..........................................................7
6. SHIPPING AND DELIVERY...................................................7
7. TITLE AND RISK OF LOSS..................................................8
8. FORCE MAJEURE...........................................................8
9. PAYMENT.................................................................9
10. QUALITY, INSPECTION, TESTING AND ACCEPTANCE............................10
11. CONFORMITY TO THE SPECIFICATIONS.......................................11
12. CUSTOMER FURNISHED EQUIPMENT (CFE), MATERIALS, AND DATA................11
13. RIGHTS IN DATA.........................................................11
14. PATENTS................................................................15
15. FOREIGN ACCESS TO TECHNOLOGY...........................................17
16. MATERIAL SUPPLIERS AND SUBCONTRACTORS..................................19
17. WARRANTY...............................................................20
18. DISCLAIMER OF IMPLIED WARRANTIES.......................................20
19. LIMITATION OF LIABILITY................................................21
20. INDEMNIFICATION........................................................21
21. PATENT INFRINGEMENT....................................................22
23. RESOLUTION OF DISPUTES AND CHOICE OF LAW...............................23
24. SEVERABILITY...........................................................24
26. NOTICES................................................................25
30. DISCLOSURE AND PROTECTION OF INFORMATION...............................26
31. CHANGES................................................................26
32. TERMINATION FOR CAUSE..................................................27
33. TERMINATION FOR CONVENIENCE............................................27
34. SALES TAXES............................................................28
35. MODIFICATIONS..........................................................28
36. WAIVER.................................................................28
38. INCORPORATION BY REFERENCE.............................................28
40. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE...............................29
STDC-98-NEMO-0003 Page 1
Sales Contract for the Design, Fabrication, Test and Delivery of a Sensor
Imaging Payload for the Navy EarthMap Observer Program
THIS SALES CONTRACT FOR THE DESIGN, FABRICATION, TEST AND DELIVERY OF A SENSOR
IMAGING PAYLOAD (hereinafter referred to as the "Contract") is made and entered
into this 30 day of March, 1998, (hereinafter referred to as the "Effective
Date") by and between Space Technology Development Corporation (hereinafter
referred to as "STDC" or the "Buyer"), a Virginia Corporation, having its
offices at 100 North Pitt Street, Suite 403, Alexandria, VA 22314, and Science
Applications International Corporation (hereinafter referred to as "SAIC" or
"Seller"), a Delaware Corporation, having its offices at 16701 West Bernardo
Drive, San Diego, CA 92127.
1. RECITALS
This agreement is made with reference to the following facts and objectives:
WHEREAS, Buyer has a requirement for the design, development and delivery of a
sensor imaging payload to be used on the Navy EarthMap Observer;
WHEREAS, Seller and Seller's subcontractors have developed certain proprietary
technology which Seller has agreed to implement in the form of a sensor imaging
payload;
WHEREAS, Buyer and Seller have determined that they will mutually benefit by
entering into this Sales Contract for a sensor imaging payload;
NOW THEREFORE, In consideration of the covenants and mutual promises contained
herein, the parties agree as follows:
2. ABBREVIATIONS AND DEFINITIONS
2.1 CFE - Customer Furnished Equipment (equipment provided to Seller by
Buyer).
2.2 COIS - Coastal Ocean Imaging Spectrometer
2.3 Effective Date - The last signature date of this Contract.
2.4 FAT - Factory Acceptance Test
2.5 FPA - Focal Plane Array
2.6 GSE - Ground Support Equipment
2.7 PIC - Panchromatic Imaging Camera
2.8 SIP - Sensor Imaging Payload
2.9 SWIR Sensor - Short Wave Infrared Sensor
2.10 DAC - Days after Contract Effective Date
2.11 MAC - Months after Contract Effective Date
2.12 Other Transaction - The Agreement between ONR and Buyer to procure the
Navy EarthMap Observer dated 11 December 1997.
2.13 Invention - Means any invention or discovery that is or may be
patentable or otherwise protectable under Title 35 of the United States
Code.
2.14 Subject Invention - Means any invention of Seller conceived or first
actually reduced to practice in the performance of work under this
Contract.
2.15 Made - When used in relation to any invention means the conception or
first actual reduction to practice of such invention.
3. SCOPE; ITEMS TO BE SUPPLIED; DELIVERABLES; PRICES
Contract Line Items (CLIN) 1 and 2 shall be authorized at the time of
contract award. CLIN 3 is an option that may be exercised unilaterally
by the Buyer as specified in paragraph 3.3 below. CLINs 1A, 1B, 1C, 2A
and 3A are undefinitized options that may be exercised upon mutual
agreement by both parties.
3.1 Contract Line Item 1 (CLIN 1)
3.1.1 The Seller shall design, fabricate and test one Engineering Model
Sensor Imaging Payload (SIP), which will be retained at the Seller's
facility. The Seller shall design, fabricate, test and deliver one
Protoflight Model SIP. The Engineering Model SIP and Protoflight Model
SIP shall be designed and fabricated in accordance with paragraph 3.1
through 3.1.5 of Attachment A, "Statement of Work".
3.1.2 Seller shall conduct a Preliminary Design Review and Critical Design
Review for the Buyer by the date set forth in Clause 6, "Schedule", of
this Contract.
3.1.3 Seller shall perform a Factory Acceptance Test of the Protoflight Model
SIP as stipulated in paragraphs 3.1.4 and 3.9 of Attachment A,
"Statement of Work" by the date set forth in Clause 6, "Schedule" of
this Contract.
3.1.4 Upon successful completion of the Factory Acceptance Test (FAT) of the
Protoflight Model SIP, the Seller shall prepare the SIP for shipment to
the Buyer's facilities. The Protoflight Model SIP shall be delivered to
the Buyer in accordance with Clause 6, Shipping and Delivery.
3.1.5 The Seller shall design, fabricate and deliver one set of GSE to
operate and test the SIP in accordance with paragraph 3.1.3 of
Attachment A, "Statement of Work". Upon successful completion of the
FAT for the GSE, the GSE shall be delivered to the Buyer in accordance
with Clause 6, Shipping and Delivery.
3.1.6 The Seller shall deliver the items on the Seller Data Requirements List
(SDRL), in accordance with paragraph 3.5.5 of Attachment A, "Statement
of Work". All reports 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
Attn: Nora Rumpf
3.1.6.1 Upon completion and approval by the Buyer of the Interface Control
Document (SDRL C006) it shall be incorporated into the contract. The
Buyer shall be the custodian of the Interface Control Document.
3.1.7 The total Firm Fixed Price for Contract Line Item 1 is $7,221,602.
3.2 Contract Line Item 2 (CLIN 2)
3.2.1 The Seller shall design and fabricate the SWIR spectrometer,
cryocooler, and SWIR and cryocooler electronics for the Engineering
Model SIP and Protoflight Model SIP in accordance with paragraph 3.2.1
of Attachment A, "Statement of Work". In the event Optional CLIN 3 is
not exercised, this hardware will be tested as components in accordance
with paragraph 3.9 of Attachment A, "Statement of Work", this hardware
will not be integrated into the SIP and it shall be delivered to the
Buyer.
3.2.2 The total Firm Fixed Price for Contract Line Item 2 is $1,208,820.
3.3 Optional Contract Line Item 3 (Clin 3) SWIR Integration
3.3.1 The Buyer acknowledges that the Seller is designing, developing and
fabricating two Prototype Model SWIR Sensors which are to meet the
specifications in the "Navy EarthMap Observer (NEMO) Sensor Imaging
Payload (SIP) System Specification (SSS)", Document Number SSD-S-NE001,
dated 2 March 1998, under a separate Contract between the Buyer and
Seller. The Buyer acknowledges that the Seller may not be able to
complete this effort on schedule and/or that the Protoflight SWIR
Sensor may not meet the specifications in the "Navy EarthMap Observer
(NEMO) Sensor Imaging Payload (SIP) System Specification (SSS)",
Document Number SSD-S-NE001, dated 2 March 1998. However, the Buyer
desires to have the following option:
1) Integrating the Protoflight SWIR FPA and Dewar Assembly
into the Protoflight SIP along with the Protoflight SWIR
spectrometer, cryocooler, and electronics fabricated under
CLIN 2 (paragraph 3.2) above. The requirements for this
integration effort are stipulated in paragraph 3.3.1 of
Attachment A, "Statement of Work"; and
2) Performing a FAT on the Protoflight Model SIP COIS SWIR
channel which includes the SWIR Sensor and the SWIR
spectrometer, cryocooler and electronics as stipulated in
paragraph 3.9 of Attachment A, "Statement of Work", by the
date set forth in Clause 6, "Schedule", of this Contract.
3.3.2 This Optional CLIN 3 may be unilaterally exercised by the Buyer provided
that
1) the Protoflight SWIR Sensor is available for integration no later than
15 months after the Effective Date of this Contract; and
2) the SWIR Sensor meets the specifications in the "Navy EarthMap Observer
(NEMO) Sensor Imaging Payload (SIP) System Specification (SSS)",
Document Number SSD-S-NE001, dated 2 March 1998
3.3.3 In the event the SWIR Sensor is not available by 15 months after the
Effective date of this Contract or it is nonconforming to the
specification cited in paragraph 3.3.2 above, and Buyer wishes to
exercise the option for CLIN 3, the Buyer expressly agrees that,
notwithstanding the fact that the SWIR Sensor is being fabricated under
a separate Contract between the Buyer and the Seller, the Seller shall
be entitled to an equitable adjustment in accordance with Clause 28,
"Changes" of this Contract. In this event, the parties shall negotiate
such equitable adjustment prior to exercising the option.
3.3.4 The total Firm Fixed Price for Contract Line Item 3 is $72,893.
3.4 Optional Contract Line Item 1A (Optional CLIN 1A) - Engineering Model
Refurbishment
3.4.1 The Seller shall refurbish the Engineering Model SIP in accordance with
paragraph 3.1.7 of Attachment A, "Statement of Work", which has been
retained at the Seller's facility. The Engineering Model SIP shall then
be shipped to NRL's PCF between 16 and 20 months after award of
contract to support four to eight weeks of testing. At the end of this
testing the Engineering Model SIP shall be returned to the Seller.
3.4.2 This is an unpriced option. The Buyer shall notify the Seller of its
intent to exercise this option in writing no later than 10 working days
after CDR requesting a proposal for the effort. This option may only be
exercised by mutual agreement of the parties on the work required,
price, schedule and other terms. This work may be performed on a basis
other than Firm Fixed Price. In no event shall the Seller be required
to start work on this option until negotiations are completed and the
Contract is modified to exercise this option.
3.5 Optional Contract Line Item 1B (Optional CLIN 1B) - Second Engineering
Model SIP
3.5.1 The Seller shall fabricate, test, and deliver a second Engineering
Model SIP in accordance with paragraph 3.1.8 of Attachment A,
"Statement of Work". The Seller shall design, fabricate, and deliver
GSE with the Engineering Model to NRL's PCF.
3.5.2 This is an unpriced option. The Buyer shall notify the Seller of its
intent to exercise this option in writing no later than 10 working days
after CDR requesting a proposal for the effort. This option may only be
exercised by mutual agreement of the parties work required, price,
schedule and other terms. This work may be performed on a basis other
than Firm Fixed Price. In no event shall the Seller be required to
start work on this option until negotiations are completed and the
Contract is modified to exercise this option.
3.6 Optional Contract Line Item 1C (Optional CLIN 1C) - SIP Command,
Telemetry, and Data Interface Simulator
3.6.1 The Seller shall design, fabricate, and deliver a high-fidelity,
interactive SIP Command, Telemetry, and Data Interface Simulator in
accordance with paragraph 3.1.9 of Attachment A, "Statement of Work".
3.6.2 This is an unpriced option. The Buyer shall notify the Seller of its
intent to exercise this option in writing no later than 10 working days
after CDR requesting a proposal for the effort. This option may only be
exercised by mutual agreement of the parties work required, price,
schedule and other terms. This work may be performed on a basis other
than Firm Fixed Price. In no event shall the Seller be required to
start work on this option until negotiations are completed and the
Contract is modified to exercise this option.
3.7 Optional Contract Line Item 2A (Optional CLIN 2A) - Second SWIR
3.7.1 The Seller shall fabricate, test, and deliver an additional SWIR
spectrometer, cryocooler, and electronics for the second Engineering
Model SIP to be delivered to NRL's PCF in accordance with paragraph
3.2.2 of Attachment A, "Statement of Work".
3.7.2 This is an unpriced option. This option may only be exercised if
Optional CLIN 1A or Optional CLIN 1B have been negotiated and exercised
in accordance with this Contract. The Buyer shall notify the Seller of
its intent to exercise this option in writing no later than 10 working
days after CDR requesting a proposal for the effort. This option may
only be exercised by mutual agreement of the parties on the work
required, price, schedule and other terms. This work may be performed
on a basis other than Firm Fixed Price. In no event shall the Seller be
required to start work on this option until negotiations are completed
and the Contract is modified to exercise this option.
3.8 Optional Contract Line Item 3A (Optional CLIN 3A) - Option for Second
SWIR Integration
3.8.1 The Seller shall integrate a second SWIR Sensor in accordance with
paragraph 3.3.2 of Attachment A, (developed under another contract) and
the SWIR spectrometer, cryocooler, and electronics (Optional CLIN 2A)
into the Engineering Model SIP required in Optional CLIN 1B.
3.8.2 This is an unpriced option. This option may only be exercised if
Optional CLIN 1B and Optional CLIN 2A are negotiated and exercised in
accordance with this Contract. The Buyer shall notify the Seller of its
intent to exercise this option in writing no later than 10 working days
after CDR requesting a proposal for the effort. This option may only be
exercised by mutual agreement of the parties on the work required,
price, schedule and other terms. This work may be performed on a basis
other than Firm Fixed Price. In no event shall the Seller be required
to start work on this option until negotiations are completed and the
Contract is modified to exercise this option.
3.9 Optional Contract Line Item 4A - Option for Retest
3.9.1 If the Protoflight SIP fails the test for Conducted Susceptibility
required by Paragraph 3.3.2 of Attachment B, the Seller shall modify
and retest the Protoflight SIP to pass the test.
3.9.2 This is an unpriced option. The Buyer shall notify the Seller of its
intent to exercise this option in writing requesting a proposal for the
effort. This option may only be exercised by mutual agreement of the
parties work required, price, schedule and other terms. This work may
be performed on a basis other than Firm Fixed Price. In no event shall
the Seller be required to start work on this option until negotiations
are completed and the Contract is modified to exercise this option.
4. TYPE OF CONTRACT
Except as set forth in Clause 31, "Sales Taxes", Seller shall perform
the services and deliver the items set forth in this Contract for the
agreed upon fixed price for each contract line item as set forth in
Clause 3, Scope; Items to be supplied; Deliverables; Prices. These
prices may be revised from time to time at the mutual agreement of the
parties as provided for elsewhere in this Contract.
5. EFFECTIVE DATE
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 are expressed in terms of "Months After Contract, (MAC)"
or "Days After Contract, (DAC)".
5.2 Seller's obligation to perform shall commence upon signature of the
Contract by both parties.
6. SHIPPING AND DELIVERY
6.1 Shipping Instructions and Delivery Terms:
6.1.1 All items shall be delivered by the Seller FOB Seller's Facility.
Delivery terms shall be interpreted in accordance with the Uniform
Commercial Code as adopted by the State of California. All equipment
shall be prepared for shipment and packaged in accordance with Seller's
standards for air ride van.
Shipments shall be marked for as directed by the Buyer.
6.1.2 All documentation shall be delivered under cover of a transmittal
letter and shipped to the Buyer via common carrier.
6.2 Schedule
6.2.1 The items required under this contract shall be delivered/performed in
accordance with the following schedule:
Milestone Completion/Shipment Date
- -------------------------------------- -----------------------------------------
Preliminary Design Review No later than April 23, 1998
- -------------------------------------- -----------------------------------------
Critical Design Review No later than 5 MAC
- -------------------------------------- -----------------------------------------
Shipment of GSE (CLIN 1) No later than 21.5 MAC
- -------------------------------------- -----------------------------------------
Shipment of Protoflight SIP (CLIN 1) No later than 21.5 MAC
- -------------------------------------- -----------------------------------------
6.2.2 The delivery schedule set forth in paragraph 6.2.1 above reflects the
only delivery dates which the Seller is obligated to meet during the
performance of this Contract. All other dates including those contained
in SDRL C002 are informational and are not contractually binding. The
Seller may deliver any and all items prior to the dates set forth in
paragraph 6.2.1.
7. TITLE AND RISK OF LOSS
7.1 Risk of loss of all items shall be transferred from Seller to Buyer
upon delivery as specified in Article 6, "Shipping and Delivery", as
governed by the Uniform Commercial Code.
7.2 Title of each item to be delivered by Seller under this Contract shall
be transferred from Seller to Buyer upon completion of the all of the
following: 1)acceptance of each item, 2) shipment of each item and 3)
receipt by Seller of payments set forth in Clause 9, "Payment".
7.3 Prior to transfer of title, the items shall not be used, installed,
handled or maintained by any party other than Seller, except as
expressly authorized in writing by Seller's authorized representative.
The beneficial use or operation of the system by the Buyer shall
constitute final acceptance by the Buyer, notwithstanding the status of
any testing as set forth in Clause 10 , "Quality, Inspection, Testing
and Acceptance".
8. FORCE MAJEURE
8.1 Seller 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 Seller's control,
provided that Seller gives notice to the Buyer according to paragraph
8.4 below.
8.2 The impact of Force Majeure on Seller's subcontractors hereunder shall
be considered to be Force Majeure on Seller, provided that Seller gives
notice to the Buyer according to paragraph 8.4 below.
8.3 The Seller'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.
8.4 Seller shall inform the Buyer in writing within 45 days after a fact or
event has been recognized by Seller to have occurred.
9. PAYMENT
9.1 The Buyer agrees to make payments to Seller for work performed under
this Contract in accordance with the Milestone Payment Schedule
contained in Attachment E of this Contract. The Seller shall
demonstrate successful completion of the milestone events on Attachment
E in Seller's monthly report to Buyer before such payment can or will
be made.
9.2 In the event Seller completes the work required for any CLIN before all
milestone billings for that CLIN have been submitted, the Seller may
submit a final invoice for that CLIN in the total amount of the
remaining amount due for that CLIN.
9.3 The Buyer has agreed to assign all payments it receives from ONR under
their Other Transaction to a financial institution of Buyer's choice
pursuant to the provision sof the Assignment of Claims Act of 1940, as
amended.
9.4 The Buyer agrees to establish escrow instructions and an escrow account
with Buyer's financial institution to make all payments to Seller which
become due under this Contract. The Buyer agrees to allow its financial
institution to release to Seller or Seller's designated representative
any information necessary to establish the escrow account, to track
tranactions in the account and to determine escrow account balances.
All escrow instructions shall be agreed to by Seller and Buyer.
9.5 In the event of any delay due to any cause referred to under Clause 8,
"Force Majeure", Buyer will modify the milestone payment schedule to a
schedule mutually agreed to by Buyer and Seller.
9.6 The escrow instructions shall allow for payments for early deliveries,
partial shipments, partial payments of all items, and the presentation
of stale dated documents.
9.7 All bank charges and fees associated with the establishment and
management of the escrow account issued in accordance with the terms
and conditions of this Contract shall be for the account of the Seller.
All bank charges and fees associated with the presentation of documents
for payment as related to the escrow account shall be for the account
of the Seller.
9.8 Payment shall be sent to the Seller's remittance address specified
herein, unless alternative payment arrangement are put in place as
agreed to by Buyer and Seller.
Remittance Address: Science Applications International Corporation
Bank of America, San Francisco
Account No. 14520-00006
ABA No. 121000358
Reference: Project Number and Invoice Number
9.9 Payments shall be made immediately to Seller from the escrow account
upon receipt of Government funds and demonstration that the Seller has
successfully completed a milestone to the satisfaction of the Buyer. In
the event that invoices are not paid or the escrow account does not
contain sufficient funds to make such payment, Seller reserves the
right to suspend performance under the Contract and the Contract price
and schedule shall be equitably adjusted for any increase in costs or
schedule delays. This paragraph in no way relieves Buyer of the
ultimate responsibility to pay Seller for all work considered to be
allowable and allocable to this contract.
10. QUALITY, INSPECTION, TESTING AND ACCEPTANCE
10.1 Testing and Acceptance:
10.1.1 The sole and complete acceptance criteria for each Contract Line Items
is set forth in Attachment C, "Acceptance Criteria" of this Contract.
The items delivered under this Contract shall undergo acceptance tests
as set forth in the paragraph 3.9 of Attachment A, "Statement of Work"
to demonstrate compliance with the appropriate acceptance criteria.
Upon the successful completion of the FAT the SIP shall be packaged and
delivered to the Buyer's designated site.
10.2 The FAT required in Attachment A, "Statement of Work" shall be
conducted by the Seller at Seller's facility, San Diego, USA The Buyer
shall have the right to witness said tests. Should the Buyer notify
Seller in writing that Buyer wishes to witness the acceptance test,
then Seller shall advise the Buyer approximately two (2) weeks in
advance of the planned date on which the test will start and will
confirm the test date approximately five (5) days in advance of the
test. In the event that the Buyer is unable to attend acceptance
testing, Seller's designated Quality Assurance Representative will
witness testing on the Buyer's behalf.
10.3 The Seller shall issue a Certificate of Compliance similar in form to
Attachment D to this Contract signed by an authorized company
representative to indicate successful completion of FAT for each
Contract Line Item. Upon successful completion of FAT and signing by
the Buyer of such Certificate, acceptance of the equipment shall be
final and conclusive with the exception of latent defects. Should the
Buyer choose not to witness FAT, successful completion of FAT shall be
presumed final and conclusive upon issuance of such Certificate by the
Seller (unsigned by the Buyer).
11. CONFORMITY TO THE SPECIFICATIONS
11.1 Notwithstanding anything contained herein to the contrary, the
equipment required by this Contract shall conform to the specifications
contained in Attachments A and B.
11.2 Minor deviations (i.e. deviations which do not impact the form, fit or
functionality of the item) shall not be considered a deficiency
requiring correction by the Seller and will be accepted by the Buyer
upon completion of the acceptance testing set forth in Clause 10,
"Quality, Inspection, Testing and Acceptance".
12. CUSTOMER FURNISHED EQUIPMENT (CFE), MATERIALS, AND DATA
12.1 The Buyer agrees to make available to Seller, at Seller's facility,
free of charge, the items listed in paragraph 4, Customer Furnished
Equipment, of Attachment A, "Statement of Work". All items shall
conform to the interface control documents defined at the Critical
Design Review and shall be delivered to Seller no later than the times
shown in paragraph 4, Customer Furnished Equipment, of Attachment A,
"Statement of Work".
12.2 In the event the CFE listed in paragraph 4, Customer Furnished
Equipment of Attachment A, "Statement of Work". are late or
nonconforming, the Seller shall be entitled to an equitable adjustment
to the schedule and price of the line items in this Contract that are
affected by such late delivery or delivery of nonconforming items. In
this event, the parties shall negotiate in good faith to determine the
schedule and price adjustment.
12.5 Buyer expressly understands and agrees that risk of loss of Customer
Furnished Equipment shall remain with Buyer.
12.6 Seller shall annually submit an inventory of CFE in their custody,
which was provided to Seller for use under this Contract, to the Buyer
and to any identified Government property administrator. A final
inventory of such CFE is due by the Contract expiration date. It is to
be submitted to the Buyer for purposes of Contract closeout and final
property disposition and records reconciliation.
13. RIGHTS IN DATA
Rights in Technical Data (including Computer Software)
13.1 Definitions
13.1.1 "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.
13.1.2 "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 solely for a Government purpose.
13.1.3 "Imagery Data" means subject technical data generated as a result of
the imaging operations of a spacecraft after it is on orbit.
13.1.4 "Non-imagery data" means all subject technical data that is not imagery
data.
13.1.5 "Non-subject technical data" means all technical data produced outside
of this Agreement.
13.1.6 "Subject technical data" means all technical data first produced in the
performance of work under this Agreement.
13.1.7 "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.
13.1.8 "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 this Agreement only; 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 the Seller's written permission
to release the data outside the Government has been granted.
13.2 Government Rights in Subject Technical Data and Copyright
13.2.1 The Government shall have Government Purpose Rights in Non-Imagery Data.
13.2.2 Copyright license. The Seller grants the Government a nonexclusive,
nontransferable, irrevocable, royalty-free copyright license throughout
the world rights in copyrighted works of authorship (17 U.S.C. Section
106) prepared pursuant to this Agreement for Government Purposes.
13.3 Government and Buyer Rights in Non-Subject Technical Data
The Government and Buyer shall have Agreement Purpose Rights in
Non-Subject Technical Data that is furnished under this Agreement;
provided that the Government or the Buyer does not have greater rights
in the Non-Subject Technical Data as a result of other contracts,
grants, or agreements.
13.4 Seller Rights in Technical Data and Copyright
13.4.1 The Seller may copyright works of authorship prepared under this
Agreement that may be copyrighted under Title 17, U.S. Code.
13.4.2 All rights not granted to the Government or the Buyer in Technical
Data, whether Subject Technical Data or Non-Subject Technical Data, are
retained by Seller.
13.5 Release From Liability
Seller agrees to release the Buyer from liability for any release or
disclosure of Technical Data made in accordance with Article 2.7.7 and
to seek relief solely from the party who has improperly used, modified,
reproduced, released, performed, displayed, or disclosed Seller data
marked with restrictive legends.
13.6 Lower Tier Agreements
Whenever any technical data is to be obtained from a subcontractor or
supplier for delivery to the Buyer under this Agreement, Seller 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.
13.7 Use and Non-Disclosure Agreement
The Buyer and the Government shall not release or disclose Technical
Data outside the Government or the Buyer in which it has Agreement
Purpose Rights unless Seller has given permission and the intended
recipient has signed a non-disclosure agreement with Seller, in the
form prescribed at Attachment F of this Contract.
13.7.1 The original of the Use and Non-Disclosure Agreement is to be kept by
the Seller.
13.7.2 A copy of the Use and Non-Disclosure Agreement is to be provided to the
Buyer.
13.7.2 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
13.8 Markings
13.8.1 Seller 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.
13.8.2 Seller 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.
13.8.3 The following legends shall be used:
13.8.3.1 (Beginning of Legend)
AGREEMENT PURPOSE RIGHTS
Contract Number
Contractor Name
Contractor Address
The Buyer's and 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 Contract N00014-98-3-0001. Any reproduction of Technical
Data or portions thereof marked with this legend must also
reproduce the markings.
(End of Legend)
13.8.3.2 (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 Contract N00014-98-3-0001.
Any reproduction of technical data or portions thereof marked
with this legend must also reproduce the markings.
(End of Legend)
13.8 The following technical data and/or software used in whole or in part
under this Contract is based on pre-existing technical data and/or
software which has been adapted, modified or enhanced during
performance of this Contract and is considered Non-Subject Technical
Data under this Contract:
a. Sunpower: M77 Cryocooler, Counterbalancer, and Electronics
Design/Patents.
b. Sarnoff: VCCD1024H CCD Sensor Design/Patents.
c. Rockwell: 1024 x 1024 HgCdTe FPA with multiport readout
Designs/Patents.
d. Dalsa: IL-T4-6000 Tri-TDI Sensor Designs/Patents; CL-T3-2048A
-STDL and CL-E2-2048A Camera Designs/Patents.
e. Photometrics: CCD Camera Circuitry Designs/Patents.
f. Ruda & Associates, Inc.: Optical Design, Alignment, and
Analysis Tools and Techniques; Optical Component Mechanical
Mount Designs/Patents.
g. DSI: Thin Film Deposition Design Tools and Deposition
Techniques.
h. PixelVision/Specim: ImSpector Spectrometer/Prism-Grating-Prism
Component Designs/Patents.
i. ICC: Type II Dewar Assembly Design, Design Details, and
Patents
13.9 Seller shall include this provision, suitably modified to identify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
14. PATENTS
14.1 Definitions
14.1.1 "Invention" means any invention or discovery which is or may be
patentable or otherwise protected under Title 35 of the United States
Code.
14.1.2 "Subject" invention means any invention of SELLER conceived or first
actually reduced to practice in the performance of work under this
Contract.
14.1.3 "Made" when used in relation to any invention means the conception or
first actual reduction to practice of such invention.
14.2 Allocation of Principal Rights
Seller retains the entire right, title, and interest throughout the
world to each subject invention. With respect to any subject invention
in which Seller 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. Seller agrees to execute or to
have executed and promptly deliver to Buyer a confirmatory instrument
necessary to establish or confirm the license rights the Government has
throughout the world in those subject inventions to which Seller has
title.
If Seller does not either file promptly a patent application or intend
to protect the subject invention as a trade secret with appropriate
confidentiality statements, Seller 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
the Buyer. If such title is assigned to the Government, Seller will
retain a nonexclusive royalty-free license throughout the world in the
assigned subject invention. Seller's license extends to its domestic
subsidiary and affiliates, if any, within the corporate structure of
which Seller is a party and includes the right to grant sublicenses of
the same scope to the extent Seller was legally obligated to do so at
the time the Contract was awarded. The license is transferable only
with the approval of the Buyer and the Office of Naval Research except
when transferred to the successor of that part of Seller's business to
which the invention pertains.
14.3 Invention Disclosure
Seller will identify each subject invention, the inventor(s), and this
Contract under which the invention was made to the Buyer within two
months after the inventor discloses the subject invention in writing to
recipient personnel responsible for patent matters.
Seller 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."
14.4 Subcontracts
Seller 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, Seller 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.
14.5 Preference for United States Industry
Seller 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 the Buyer and the Office of Naval Research upon a showing by the
Seller 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.
14.6 Seller shall include this provision, suitably modified to idnetify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
15. FOREIGN ACCESS TO TECHNOLOGY
Note: This Article shall remain in effect during the term of the Contract and
for two (2) years after the Definitization date.
15.1 Definitions
15.1.1 "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 which are owned or
substantially controlled by foreign Governments, firms, institutions,
or individuals.
15.1.2 "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,
specifications, devices, apparatus and machines.
15.1.3 "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.
15.2 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.)
The Parties further agree that the provisions of this Article do not
apply to Non-Subject Technical as defined in paragraph 13.8 of this
Contract.
15.3 Restrictions on Sale or Transfer of Technology to Foreign Firms or
Institutions
15.3.1 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 15.3.2, 15.3.3, and
15.3.4 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 SELLER 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.
15.3.2 The Seller shall provide timely notice to the Buyer of any proposed
transfers from Seller 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, Seller, 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 Seller.
15.3.3 In any event, Seller shall provide written notice to the Buyer 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 Buyer's written notification, the Grants
Officer shall advise Buyer whether it consents to the proposed transfer
and Buyer will then notify Seller 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, Seller may
utilize normal Claims, Disputes, and Appeals procedures. No transfer
shall take place until a decision is rendered.
15.3.4 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, Seller 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.
15.3.5 Lower Tier Agreements
Seller 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.
16. MATERIAL SUPPLIERS AND SUBCONTRACTORS
Seller's price as stated in this Contract is based in part on
purchasing the following items from the suppliers indicated below:
CLIN No. Item Supplier Baseline Price
CLIN 1 VNIR Spectrographs Pixel Vision $88,000
CLIN 2 Sunpower M77 Cryocooler Sun Power, Inc. $248,000
CLIN 2 SWIR Spectograph Pixel Vision $102,000
In the event Seller can not purchase these items from the sources shown
above and Seller must identify and use alternate sources of supply,
Seller and STDC will negotiate an equitable adjustment to the price for
the affected CLIN based upon the baseline price above.
17. WARRANTY
17.1 General. All warranties is extended to Seller by Seller's vendors shall
be assigned to the Buyer.
17.2 Year 2000 Warranty
17.2.1 Seller warrants that the Ground Support Equipment required by paragraph
3.1.5 of this Contract developed by Seller and delivered under this
Contract shall be able to accurately process dates between the
twentieth and twenty-first centuries, in either direction, when used in
its original and unmodified condition and in accordance with the item
documentation provided by Seller (including but not limited to the
interface specification, if any), provided that all items (e.g.,
hardware, software, firmware) used in combination with Seller-delivered
items properly exchange unambiguous and Year 2000 compliant date data
(in a format agreed to between the parties and described in the
Statement of Work) with the Seller-delivered items. If the Contract
requires that specific deliverable items must perform as a system in
accordance with the foregoing warranty, then that warranty shall apply
only to those items developed and delivered by Seller as a system.
17.2.2 SAIC shall repair or replace the Ground Support Equipment, at its
option, whose non-compliance is discovered and made known by Buyer to
Seller in writing within ninety (90) days after the Buyer's acceptance
of the non-compliant item. Nothing in this warranty shall be construed
to limit any rights or remedies the Buyer may otherwise have under this
Contract with respect to defects other than Year 2000 performance.
17.2.3 As to any hardware, software, or firmware delivered but not developed
by Seller under this Contract, Seller shall, to the extent normally
permitted by the manufacturer, pass through and assign to the Customer
all of manufacturer's standard warranties, if any, including warranties
regarding Year 2000 compliance, but Seller shall not have any liability
or responsibility with respect thereto. Seller provides no further
warranty, express or implied, regarding the Year 2000 performance of
any third-party products.
17.2.4 Notwithstanding any contrary provision elsewhere in this Contract
(including exhibits and attachments), the above warranty is the
exclusive warranty provided by SAIC with respect to Year 2000
compliance or functionality, and shall take precedence over any
inconsistent provisions.
18. DISCLAIMER OF IMPLIED WARRANTIES
THE EXPRESS WARRANTIES, IF ANY, CONTAINED IN THIS CONTRACT ARE THE SOLE
AND EXCLUSIVE WARRANTIES PROVIDED BY SELLER. SELLER SPECIFICALLY
DISCLAIMS, AND CUSTOMER WAIVES ANY OTHER WARRANTIES, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM,
USAGE, OR PAST DEALINGS BETWEEN THE PARTIES.
19. LIMITATION OF LIABILITY
19.1 Buyer agrees that, Seller's total liability to Buyer 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
Seller under the Contract, or under the specific delivery order at
issue, whichever is less.
19.2 In no event shall either Seller or Buyer be liable to the other for any
special, indirect, incidental, consequential, 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.
19.3 Any claim by Buyer against Seller relating to this contract, other than
in warranty, must be made in writing and presented to Seller within one
year after the earlier of: (1) the date on which the Buyer accepts the
deliverable at issue; or (2) the date on which Seller completes
performance of the services specified in this contract. Any claim under
warranty must be made within the time specified in the applicable
warranty clause.
19.4 Seller shall in no event, under this Contract or as a result of or in
connection with anything done or omitted relative thereto, be liable
for indirect loss, consequential, incidental or special (including
multiple or punitive) damage howsoever caused, including, without
limiting the generality of the foregoing, loss or damage resulting from
loss of use or loss of profits. In any event Seller shall not be liable
for aggregate claims/damages in connection with this Contract in excess
of the total amount paid to Seller under the Contract.
20. INDEMNIFICATION
20.1 Hold Harmless. The Seller agrees to indemnify and hold harmless and
defend the Buyer , its employees and agents, against any liability or
loss for any claim made by an employee or agent of the Seller, or
persons claiming through them, for death, injury, loss or damage to
their person or property arising in connection with an act or omission
of Seller under this Contract, except to the extent that such death,
injury, loss or damage arises from the negligence of the Buyer or the
Government or its employees.
20.2 Seller shall include this provision, suitably modified to identify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
21. PATENT INFRINGEMENT
21.1 The Seller agrees not to hold the Buyer, or the U.S. Government and its
officers, agents, and employees resonsible for any and all patent
infringement cases which may arise under any research project ocnducted
under this Contract. In addition, the U.S.Government does not give,
either explicitly or implicitly, its authorization or consdent under
title 28 United States Code, Section 1498, to use or manufacture by or
for the United States, any invention described in or covered by a
patent of the United States.
21.2 Lower Tier Agreements. The Seller shall include this Article, suitably
modified to identify the Parties, in all subcontracts or lower tier
agreements (exclusive of teaming agreements), regardless of tier.
22. SECURITY
22.1 The Seller'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 proposed Contract, the
Grants Officer will inform the Seller. The Seller shall promptly notify
the Grants Officer 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.
22.2 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 letters patent in a
timely manner.
22.3 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.
22.4 Lower Tier Agreements. The Seller shall include this Article, suitably
modified to identify the Parties, in all subcontracts or lower tier
agreements (exclusive of teaming agreements), regardless of tier.
23. RESOLUTION OF DISPUTES AND CHOICE OF LAW
23.1 This Contract shall be governed by and construed under the laws of the
State of California without regard to those laws relating to conflict
of laws.
23.2 Should any disputes or differences of any kind arise between the Buyer
and the Seller, 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.
23.3 If no binding agreement can be reached, then the Buyer and the Seller
will have the right to proceed according to the Rules of the American
Arbitration Association ("AAA") for arbitration in the State of
California, United States of America before a panel of three
arbitrators, to obtain a decision which will be final, binding and
irrevocable upon both the Buyer and the Seller and not subject to any
direct or indirect legal means.
23.4 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.
23.5 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. Buyer and Seller 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.
23.6 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.
24. SEVERABILITY
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.
25. ENVIRONMENTAL LIABILITY
The Seller 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. The Seller shall not name 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.
The Seller 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. The Seller agrees to hold harmless,
indemnify and defend the Buyer and its 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, to the extent such injury or damage results from the
negligence or wrongful act of the Seller or any noncompliance with any
Federal, State, or local laws or regulations. This responsibility to
hold harmless, indemnify, and defend the Buyer shall exist even if the
release or noncompliance is discovered after the date this Contract
expires.
26. NOTICES
26.1 All notices, certificates, acknowledgments and other reports
hereinunder 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.
----------------------------------- -----------------------------------
Science Applications International Space Technology Development Corp.
Corporation
----------------------------------- -----------------------------------
16701 West Bernardo Drive 100 North Pitt Street, Suite 403
San Diego, CA 92127 Alexandria, VA 22314
Attn.: Ms. Elise Heitmeyer Attn.: Nora Rumpf
----------------------------------- -----------------------------------
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.
Either party may change its address for purpose of this Article by
giving the other party notice of such change in writing and delivered
by registered air mail or other means confirmed by both parties.
27. INVENTION REPORTS
27.1 Seller 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. Seller shall use DD Form 882, Report of Inventions and
Subcontracts, to file an inventions report. Negative reports are also
required.
27.2 Seller shall include this provision, suitably modified to identify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
28. BENEFITS REPORTS
28.1 Seller shall provide Buyer 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.
28.2 Seller shall include this provision, suitably modified to identify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
29. ASSIGNMENT
This Contract shall not be assigned by either party, without the prior
written consent of the other, except that Seller, may, upon written
notification to the Buyer, assign that portion of work which may be
scheduled to be performed by Seller in whole or in part to a subsidiary
or affiliate of Seller who performs work in the same industry.
30. DISCLOSURE AND PROTECTION OF INFORMATION
30.1 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 F, Non-Disclosure Agreement.
31. CHANGES
31.1 Either party may, at any time, request a change or modification to the
specifications, 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.
31.2 Seller will advise the Buyer if the change requires a change in the
delivery schedule or change in Contract price, in which case, Seller
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. Seller 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.
31.3 The Seller shall be entitled to an equitable adjustment in the contract
price and/or schedule in the event actions or inactions by the Buyer
require the Seller to expend additional effort to perform the work
required under this Contract.
32. TERMINATION FOR CAUSE.
32.1 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.
32.2 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) SELLER (1) fails to materially perform in accordance
with the terms of this Contract, 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) BUYER (1) fails to materially perform those actions
detailed in Exhibit A) which are necessary to allow
SELLER 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 Buyer or its
partners becomes insolvent or have a bankruptcy
petition filed against either which petition neither
Buyer or its partners are able to have dismissed
within sixty (60) days of such filing, or (5) has a
receiver appointed for any reason.
33. TERMINATION FOR CONVENIENCE
It is mutually agreed that the Buyer 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, however, the Other Transaction
is extended, reorganized, restructured or placed under another
Government contract or subcontract, to be performed by the Buyer or
successor in interest, so that the work to be performed by the Seller
is nevertheless required by the Government although in an extended,
reorganized or restructured form, SAIC 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.
34. SALES TAXES
The items purchased under this Contract are for resale to the U.S.
Government. The prices contained in this Contract do not include any
applicable sales, use or gross receipts tax. If possession of goods or
services is taken by the Buyer in the United States and the transfer is
subject to sales and use taxes or gross receipts tax of a particular
state, then the Buyer will reimburse such tax over and above the prices
set forth herein. Unless Seller receives a sales tax certificate which
exempts the goods and services from such taxes, Seller shall invoice
and Buyer shall reimburse Seller for the tax in addition to the stated
prices set forth herein.
35. MODIFICATIONS
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.
36. WAIVER
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.
37. NEWS RELEASES
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.
38. INCORPORATION BY REFERENCE
The following attachments referred to herein and attached hereto are
hereby incorporated by reference and made an integral part of this
Contract:
Attachment A Statement of Work for the Sensor Imaging Payload System
dated 16 March 1998.
Attachment B Navy EarthMap Observer (NEMO) Sensor Imaging Payload
(SIP) System Specification, Document No. SSD-S-NE001,
dated 2 March 1998
Attachment C Acceptance Criteria
Attachment D Certificate of Compliance
Attachment E Milestone Payment Schedule
Attachment F Non-Disclosure Agreement Between Buyer and Seller dated
August 11, 1997
39. GOVERNING LAW
This Contract shall be enforced and interpreted under the laws of the
State of California, exclusive of the conflict of laws rules thereof.
40. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE
40.1 This document sets forth the entire agreement between the parties as to
the subject matter hereof and supersedes all prior discussions 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.
40.2 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
2) Acceptance Criteria (Attachment C)
3) Statement of Work of this Contract (Attachment A).
4) Navy EarthMap Observer (NEMO) Sensor Imaging Payload (SIP)
System Specification, Document No. SSD-S-NE001, dated 2 March
1998 (Attachment B)
5) Other documents and standards referenced in this Contract.
40.3 This document has been prepared jointly by the parties. Any ambiguity
which 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.
SCIENCE APPLICATIONS SPACE TECHNOLOGY
INTERNATIONAL CORPORATION DEVELOPMENT CORPORATION
/s/ Elise Heitmeyer /s/ Lenore M Rumpf
- ------------------------------- ----------------------------
Signature Signature
Elise Heitmeyer, Contract Manager Lenore M. Rumpf, Contracts Administrator
Name and Title: Name and Title:
Date: 3/30/98 Date: 3/30/00