SALES CONTRACT
BETWEEN
SCIENCE APPLICATIONS INTERNATIONAL CORP.
AND
SPACE TECHNOLOGY DEVELOPMENT CORP.
CONTRACT NUMBER: STDC-98-NEMO-004
Dated:30 March 1998
TABLE OF CONTENTS
Page
1. RECITALS...............................................................1
2. ABBREVIATIONS AND DEFINITIONS..........................................1
3. SCOPE; ITEMS TO BE SUPPLIED; DELIVERABLES..............................2
4. TYPE OF CONTRACT.......................................................3
5. EFFECTIVE DATE.........................................................3
6. SHIPPING AND DELIVERY..................................................3
7. TITLE AND RISK OF LOSS.................................................4
8. FORCE MAJEURE..........................................................5
9. PAYMENT................................................................5
10. ADMINISTRATION, ACCOUNTING PROCEDURES, AND FISCAL MANAGEMENT...........7
11. QUALITY, INSPECTION, TESTING AND ACCEPTANCE............................7
12. CONFORMITY TO THE SPECIFICATIONS.......................................8
13. RIGHTS IN DATA.........................................................8
14. PATENTS...............................................................13
15. FOREIGN ACCESS TO TECHNOLOGY..........................................14
16. DISCLAIMER OF IMPLIED WARRANTIES......................................17
17. LIABILITY.............................................................17
18. USE OF TECHNICAL FACILITIES...........................................18
19. SECURITY...........................................................19
20. RESOLUTION OF DISPUTES AND CHOICE OF LAW..............................19
21. SEVERABILITY.......................................................20
22. NOTICES...............................................................20
23. LIMITATION OF LIABILITY...............................................21
24. ASSIGNMENT............................................................21
25. DISCLOSURE AND PROTECTION OF INFORMATION..............................21
26. CHANGES...............................................................22
27. TERMINATION FOR CAUSE.................................................22
28. TERMINATION FOR CONVENIENCE...........................................23
29. SALES TAXES...........................................................23
30. INVENTION REPORTS.....................................................23
31. BENEFITS REPORTS......................................................24
32. MODIFICATIONS.........................................................24
33. WAIVER................................................................24
34. COST SHARE............................................................24
35. INCORPORATION BY REFERENCE............................................24
36. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE..............................25
Sales Contract for the Design, Fabrication, Test and Delivery of a Short
Wave Infrared Sensor for the Navy EarthMap Observer Program
THIS SALES CONTRACT FOR THE DESIGN, FABRICATION, TEST AND DELIVERY OF A SHORT
WAVE INFRARED SENSOR (hereinafter referred to as the "Contract") is made and
entered into this 30th 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 2111 Wilson Boulevard, Suite 700 Arlington,
Virginia 22201, 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, California.
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
short wave infrared sensor to be used on the Navy EarthMap Observer 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 Effective Date - The last signature date of this Contract.
2.2 AT - Acceptance Test
2.3 SIP - Sensor Imaging Payload
2.4 SWIR Sensor - Short Wave Infrared Sensor (including SWIR array
and dewar)
2.5 DAC - Days after Contract effective Date
2.6 MAC - Months after Contract effective Date
2.7 Other Transaction - The Agreement between ONR and Buyer to procure the
Navy EarthMap Observer dated December 11, 1997.
2.8 Invention - Means any invention or discovery which is or may be
patentable or otherwise protected under Title 35 of the United States
Code.
2.9 Subject Invention - Means any invention of the Seller conceived or
first actually reduced to practice in the performance of work under
this Contract.
2.10 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
Contract Line Item (CLIN) 1 shall be authorized at the time of contract
award. CLIN 2 is an undefinitized option that may be exercised upon
mutual agreement by both parties.
3.1 Contract Line Item 1 (CLIN 1)
The Seller shall use its best efforts to design, fabricate and test one
Engineering Model SWIR Sensor which will be retained at the Seller's
facility until the completion of this Contract. The Seller shall
design, fabricate, test and deliver two Protoflight Model SWIR Sensors.
The Engineering and Protoflight Model SWIR Sensor shall be designed and
fabricated in accordance with Attachment A, "SWIR Sensor Statement of
Work" and with Attachment B, "Navy EarthMap Observer SIP
Specification".
3.1.1 Seller shall conduct a Preliminary Design Review and Critical Design
Review for the Buyer.
3.1.2 Seller shall perform an Acceptance Test of the Engineering and
Protoflight Model SWIR Sensors as stipulated in paragraph 3.6 of
Attachment A, "SWIR Sensor Statement of Work".
3.1.3 Upon successful completion of the Acceptance Test of the Engineering
Model SWIR Sensor, the sensor will be delivered in place and it will be
made available for Seller to integrate into the Engineering Model SIP
that Seller is fabricating for Buyer under a separate contract. Upon
successful completion of the Acceptance Test of the two Protoflight
Model SWIR Sensors, the Seller shall deliver them in place and they
will be made available for Seller to integrate one Protoflight Model
SWIR Sensor into the Protoflight SIP being fabricated by Seller for
Buyer under a separate contract.
3.1.4 The Seller shall deliver the items on the Seller Data Requirements List
(SDRL), in accordance with paragraph 3.2 of Attachment A, "SWIR Sensor
Statement of Work".
3.1.5 The estimated total cost to perform the work required under this CLIN
is $1,558,315. The total fixed fee to be paid to Seller to perform the
work required under this CLIN is $125,419.
3.2 Optional Contract Line Item 2 (Optional CLIN 2) - Second SWIR
Engineering Model Sensor Assembly
3.2.1 The Seller shall fabricate and test a second SWIR Engineering Model
Sensor Assembly in accordance Attachment A, "SWIR Sensor Statement of
Work" and with Attachment B, "Navy EarthMap Observer SIP
Specification". This second SWIR Engineering Model Sensor shall be
delivered in place and made available for Seller to integrate into an
optional Engineering Model SIP that may be fabricated by Seller for
Buyer under a separate contract.
3.2.2 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 shall be performed on a Cost
Plus Fixed Fee basis. 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
The work shall be performed on a Cost Plus Fixed Fee basis. The
estimated total cost to perform the work required under this Contract
is $1,558,315. The total fixed fee to be paid to Seller to perform the
work required under this Contract is $125,419. The Seller shall not be
required to incur any costs in excess of the total estimated cost and
fixed fee in performance of the work required under this contract. The
contract cost and fixed fee may be revised from time to time at the
mutual agreement of the parties as provided for elsewhere in this
Contract.
5. EFFECTIVE DATE
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)".
6. SHIPPING AND DELIVERY
6.1 Shipping Instructions and Delivery Terms:
6.1.1 All hardware items shall be delivered in place at Seller's San Diego
facility for integration into the SIP being fabricated by Seller under
a separate contract with the Buyer.
6.1.2 In the event the hardware items are not integrated into the SIP, they
shall be shipped to the Buyer, FOB Seller's San Diego facility. All
hardware shall be prepared for shipment and packaged in accordance with
Seller's standards for air ride van.
Shipments shall be marked as directed by Buyer.
6.1.3 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 completed/performed in
accordance with the following schedule:
-----------------------------------------------------------------------
Milestone Completion/Shipment Date
-------------------------------------------- --------------------------
Preliminary Design Review April 23 and 24, 1998
-------------------------------------------- --------------------------
Critical Design Review No later than 5 MAC
-------------------------------------------- --------------------------
Completion of Engineering Model SWIR Sensor No later than 10 MAC
-------------------------------------------- --------------------------
Completion of Protoflight Model SWIR Sensor No later than 15 MAC
-------------------------------------------- --------------------------
6.2.2 The schedule set forth in paragraph 6.2.1 above reflects the only
delivery/completion dates which the Seller is obligated to meet during
the performance of this Contract. The Seller may deliver/complete 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 as
follows:
7.1.1 In the event the hardware items are integrated into the Seller's SIP,
risk of loss shall be transferred from Seller to Buyer upon delivery of
the SIP.
7.1.2 In the event the hardware items are not integrated into the Seller's
SIP, risk of loss shall be transferred from Seller to Buyer upon
shipment of the hardware as specified in paragraph 6.1.2 above, as
governed by the Uniform Commercial Code.
7.2 Title to all property purchased by the Seller for which the Seller is
entitled to be reimbursed as a direct item of cost under this Contract
shall pass to and vest in the Buyer upon 1) issuance of the property
for use in contract performance; 2) commencment of processing of the
property for use in contract performance; or 3) reimbursement of the
cost of the property by the Buyer, whichever occurs first.
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 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 provisions of the Assignment of Claims Act of 1940, as
amended.
9.2 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.
9.3 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.
9.4 The escrow instructions shall allow for payments for early deliveries,
partial shipments, partial payments of all items, and the presentation
of stale dated documents.
9.5 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.
9.6 Payment shall be sent to the Seller's remittance address specified
herein, unless alternative payment arrangements 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
9.7 The Seller may submit invoices to the Buyer for payments as work
progresses, but not more often than once every month. Invoices are to
be submitted by the 10th of the month for costs incurred in the
previous month plus a corresponding portion of the fixed fee. The Buyer
shall pay such invoices (as determined to be allowable by Buyer in
accordance with Subpart 31.2 of the Federal Acquisition Regulation
(FAR) in effect on the date of this Contract and the terms of this
Contract). Payments shall be made within thirty (30) days after receipt
of an invoice to Seller from the escrow account. In the event that
invoices are not paid or there are insufficient funds in the escrow
account to pay invoices, 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.
9.8 Costs incurred by the Seller prior to the Effective Date of this
Contract, up to a maximum of $200,000, will be reimbursed by Buyer to
Seller providing that such precontract costs are considered allowable
and allocable to this Contract.
10. ADMINISTRATION, ACCOUNTING PROCEDURES, AND FISCAL MANAGEMENT
10.1 Restrictions on Use of Funds. Funds provided under this Contract must
be allocated by the Seller exclusively for the execution and operation
of the Statement of Work.
10.2 Administration. The Seller shall implement administration 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
Agreements with Institutions of Higher Learning Education, Hospitals,
and Other Non-Profit Organizations, " dated 19 November 1993. 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", "Agreement" 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.
10.3 Accounting System. The Seller 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 the Seller to
establish any other systems extending beyond its current systems to
account for costs in accordance with generally accepted accounting
principles.
10.4 Lower Tier Agreements. The Seller shall include this Article, suitably
modified to identify the Parties, in all subcontracts or lower tier
agreements regardless of tier.
11. QUALITY, INSPECTION, TESTING AND ACCEPTANCE
11.1 Testing and Acceptance:
11.1.1 The hardware items fabricated under this Contract shall undergo
acceptance tests as set forth in the paragraph 3.6 of Attachment A,
"SWIR Statement of Work" to demonstrate compliance with the appropriate
acceptance criteria. Upon the successful completion of the Acceptance
Test, the SWIR Sensors shall be considered complete and accepted.
11.2 The Acceptance Test required in Attachment A, "SWIR Statement of Work"
shall be conducted by the Seller at Seller's facility, San Diego,
California 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.
11.3 The Seller shall issue a Certificate of Compliance similar in form to
Attachment C to this Contract signed by an authorized company
representative to indicate successful completion of Acceptance Test for
each item. Upon successful completion of Acceptance Test 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 Acceptance Test, successful completion of
the Acceptance Test shall be presumed final and conclusive upon
issuance of such Certificate by the Seller (unsigned by the Buyer).
12. CONFORMITY TO THE SPECIFICATIONS
12.1 Notwithstanding anything contained herein to the contrary, the
equipment required by this Contract shall conform to the specifications
contained in Attachments A and B.
12.2 Minor deviations in conformance to the specifications (i.e. 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 11, "Quality, Inspection, Testing and Acceptance".
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 and the Government from liability
for any release or disclosure of Technical Data made in accordance with
Article 13.7 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 or the Government 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
Neither the Buyer nor the Government shall 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 D 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.
13.7.3 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 N0014-98-3-0001, Article 8.
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, Article 8. Any reproduction of technical
data or portions thereof marked with this legend must also reproduce
the markings.
(End of Legend)
13.9 The Parties hereby agree that technical data and/or software used in
whole or in part under this Contract that is based on pre-existing
technical data and/or software which has been adapted, modified or
enhanced during performance of this Contract shall not be subject to
the provisions of this Clause 15, Foreign Access to Technology. As
such, the parties agree that the provisions of this Clause 15, Foreign
Access to Technology, are not applicable to the designs, technology and
software listed below:
13.9.1 Sunpower: M77 Cryocooler, Counterbalancer, and Electronics
Design/Patents.
13.9.2 Sarnoff: VCCD1024H CCD Sensor Design/Patents.
13.9.3 Rockwell:1024 x 1024 HgCdTe FPA with multiport readout Designs/Patents.
13.9.4 Dalsa: IL-T4-6000 Tri-TDI Sensor Designs/Patents; CL-T3-2048A-STDL and
CL-E2-2048A Camera Designs/Patents.
13.9.5 Photometrics: CCD Camera Circuitry Designs/Patents.
13.9.6 Ruda & Associates, Inc.: Optical Design, Alignment, and Analysis Tools
and Techniques; Optical Component Mechanical Mount Designs/Patents.
13.9.7 DSI: Thin Film Deposition Design Tools and Deposition Techniques.
13.9.8 PixelVision/Specim: ImSpector Spectrometer/Prism-Grating-Prism
Component Designs/Patents.
13.9.9 ICC: Type II Dewar Assembly Design, Design Details, and Patents
13.10 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 identify 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 thereafter.
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
15.2.1 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.)
15.2.2 The Parties further agree that the provisions of this Article do not
apply to Non-Subject Technical Data as defined in paragraph 13.9 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, 15.5.3, 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 or components, or
(b) licenses of software or documentation related to sales of
products or components, or
(c) transfer to foreign subsidiaries of the 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 Government of any
proposed transfers from the 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, the Buyer, the 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 the Seller.
15.3.3 In any event, the Seller shall provide written notice to the Buyer
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 the Seller's written notification, the Buyer Grants Officer
shall advise the Seller whether it consents to the proposed transfer.
In cases where the Government does not concur or sixty (60) calendar
days after receipt and the Government provides no decision, the Seller
may utilize the procedures under Article 20, Resolution of Disputes and
Choice of Law. No transfer shall take place until a decision is
rendered.
15.3.4 Except as provided in subparagraph 15.2 above and in the event the
transfer of Technology to Foreign Firms or Institutions is approved by
the Government, the 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.
15.4 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, for
experimental, developmental, or research work.
16. 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.
17. LIABILITY
17.1 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 its
employees.
17.2 Infringement.
17.2.1 The Seller agrees not to hold the Buyer or the U.S. Government and its
officers, agents, and employees, responsible for any and all patent
infringement cases which may arise under any research project conducted
under this Agreement. In addition, the U.S. Government does not give,
either explicitly or implicitly, its authorization or consent 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.
17.3. 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.
17.4 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.
18. USE OF TECHNICAL FACILITIES
18.1 To the maximum extent practical, the Seller agrees to use the technical
reference facilities of the Defense Technical Information Center, 8725
John J. Kingman Road, STE 0944, Ft. Belvoir, VA 22060-6218, and all
other sources, whether the United States government or private, for
purpose of surveying existing knowledge and avoiding needless
duplication of scientific and engineering effort.
18.2 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.
19. SECURITY
19.1 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.
19.2 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.
19.3 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.
19.4 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.
20. RESOLUTION OF DISPUTES AND CHOICE OF LAW
20.1 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.
20.2 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.
20.3 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.
20.4 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.
20.5 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.
20.6 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.
21. 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.
22. NOTICES
22.1 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.
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Science Applications International Corporation Space Technology Development Corp.
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16701W. Bernardo Center Drive 100 North Pitt Street, Suite 403
San Diego, CA Alexandria, VA 22314
Attn.: Ms. Elise Heitmeyer Attn.: Ms. Nora Rumpf
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22.2 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.
22.3 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.
23. LIMITATION OF LIABILITY
23.1 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.
23.2 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.
23.3 Any claim by Buyer against Seller relating to this contract 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.
24. 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.
25. DISCLOSURE AND PROTECTION OF INFORMATION
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.
26. CHANGES
26.1 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.
26.2 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.
26.3 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.
27. TERMINATION FOR CAUSE
27.1 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.
27.2 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 this Contract 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.
28. 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.
29. SALES TAXES
The items purchased under this contract are for resale to the US
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.
30. INVENTION REPORTS
30.1 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.
30.2 Seller shall include this provision, suitably modified to identify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
31. BENEFITS REPORTS
31.1 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.
31.2 Seller shall include this provision, suitably modified to identify the
Parties, in all subcontracts or lower tier agreements, regardless of
tier.
32. 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.
33. 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.
34. COST SHARE
The Parties agree that cost share is not a requirement of this
Contract. However, the Seller and/or Seller's subcontractors may have
in-kind cost share that may be allowable and allocable to Buyer's Other
Transaction. Seller agrees cooperate with Buyer in identifying
potential cost share and to provide information on such in-kind cost
share to Buyer in Seller's monthly report. In no event will Seller be
held liable or responsible for providing any level of cost share. Nor
shall Seller be held liable or responsible in the event any cost share
information provided to Buyer is disallowed by the Government in
conjunction with Buyer's Other Transaction.
35. 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 SWIR Sensor dated
March 16, 1998
Attachment B Navy EarthMap Observer (NEMO) Sensor Imaging Payload
(SIP) System Specification, Document No. SSD-S-NE001,
dated March 2, 1998
Attachment C Certificate of Compliance
Attachment D Non-Disclosure Agreement Between STDC and SAIC, dated
August 11, 1997
36. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE
36.1 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.
36.2 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) Statement of Work of this Contract (Attachment A).
3) Navy Earth Map Observer SWIR Sensor Specifications (Attachment B)
4) Other documents and standards referenced in this Contract.
36.3 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 Lenore M. Rumpf
Contracts Manager Contracts Administrator
- ------------------------------- -----------------------------
Name and Title: Name and Title:
Date: 3/27/98 Date: 3/27/98