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CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83
AND 230.406. * INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST THAT IS FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT 10.25
ViaSat, Inc. Date: 4 March 1994 S114TP
2290 Cosmos Court Page 1 through J-2
Carlsbad, CA 92009-1585 Vendor No: 940987
Business Classification: Small
Ms. Dianne Cherniak
SHIP TO: 4624 Executive Blvd Terms: Net 30 F.O.B.: Carlsbad, CA
Fort Wayne, IN 46808 Via: Buyer Instructions
BILL TO: 1313 Production Road JOB NO: Various ACCT. NO: 07-23-01
Fort Wayne, IN 46808 Ordered for: K. Peterman
DPAS Rating: DOA7
Contract: DAAB07-94-D-A010
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SUBCONTRACTS ORDER
1. This is a Basic Ordering Agreement (BOA) Subcontract between Magnavox
Electronic Systems Company, Fort Wayne, Indiana hereinafter called "Magnavox,"
"MESC," or "Buyer," and ViaSat Inc., Carlsbad, California hereinafter called
"ViaSat," "Subcontractor," or "Seller" for the fabrication, test, and delivery
of the Modem (MESC P/N 620307-1) for the AN/PSC-5 Enhanced Manpack UHF
Terminals (EMUT) Program.
2. This Subcontract consists of all Sections, Attachments, and Exhibits set
forth in Section A, hereto entitled "Table of Contents."
3. The parties agree that the effective date of this Subcontract is 6 January
1994, but authorization to proceed is withheld until the stop work order on the
prime contract is rescinded. The parties further agree that if the initial
delivery order is placed on or before 15 March 1994 that ViaSat's financial
claim for equitable adjustment will be limited to a labor and material
escalation adjustment resulting from the delay in start date from 6 January
1994 to the date of actual order placement and the schedule adjustment will be
a day for day slip in schedule.
4. Funding shall be authorized under the individual delivery orders issued
hereunder.
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IMPORTANT NOTICES:
This order is subject to all terms and conditions appearing herein and on any
attachment hereto.
Submission of appropriate invoices is required for payment.
By acceptance of this Subcontracts Order, the supplier certifies that it is not
debarred or suspended by the Federal Government.
VIASAT, INC. MAGNAVOX ELECTRONIC SYSTEMS COMPANY
SIGNED: /s/ SIGNED: /s/
---------------------------- -------------------------------
TITLE: President TITLE: Vice President of Purchasing
---------------------------- -------------------------------
DATE: 3/14/94 DATE: March 15, 1994
---------------------------- -------------------------------
Section B *
Section C *
Section D *
Section E *
Section F *
Section G *
Section H *
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Subcontract: S114TP
SECTION I
GENERAL PROVISIONS
A. GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
As used herein "Buyer" means Magnavox Electronic Systems Company
(Magnavox or MESC). "Seller" means the party identified on the face of
this order. "Subcontract" includes purchase orders or subcontracts
issued by Seller pursuant to this order, "Authorized Procurement
Representative" means party or parties authorized by Buyer to alter,
modify or change the provisions of this order, "Supplies" means all
articles, work or services to be furnished pursuant to this order, and
"Order" means this purchase order.
2. ACCEPTANCE
Acceptance of this order is limited to the terms and conditions stated
herein. Any additions, deletions or differences in the terms proposed by
Seller are objected to and hereby rejected unless Buyer agrees otherwise
in writing.
3. DISPUTES
Either party may litigate any dispute arising under or relating to this
Order before any court of competent jurisdiction. Pending resolution of
any such dispute by settlement or by final judgment, the parties shall
proceed diligently with performance. Seller's performance shall be in
accordance with Buyer's written instructions.
4. ASSIGNMENT
Neither this Order nor any interest herein may; be assigned, in whole or
in part, by either party without the written consent of the other party,
except that, without securing such prior consent, either party shall
have the right to assign this Order to any successor of such party by
way of merger or consolidation or the acquisition of substantially all
of the entire assets of such party relating to the subject matter of
this Order; provided that such successor shall expressly assume all of
the obligations of such party under this Order.
5. SUBCONTRACTING
Without the written consent of Buyer, neither all or substantially all
of this Order may be further subcontracted by Seller.
6. WAIVER
The failure of either party to insist on performance of any provision of
this Order shall not be construed as a waiver of that provision in any
later instance.
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7. CHOICE OF LAW
Irrespective of the place of performance, this Order will be construed
and interpreted according to the federal common law of government
contracts as enunciated and applied by federal judicial bodies, boards
of contract appeals, and quasi-judicial agencies of the federal
government. To the extent that federal common law of government
contracts is not dispositive, the laws of the state of California shall
apply.
8. PATENT, COPYRIGHT, AND TRADEMARK INDEMNITY
Seller warrants that the articles described herein, and the sale or use
of them, will not infringe or contribute to or induce the infringement
of any letters of patent, any copyright, or any trademark; and Seller
agrees to defend, protect, indemnify, and save harmless Magnavox, its
successors, assigns, and customers from all suits, damages, costs,
attorney's fees, claims, and demands for actual or alleged infringement
including contributory or induced infringement or any patent,
copyright, or trademark by reason of the sale or use of the articles
hereby ordered.
9. ADVANCE EXCESSIVE SHIPMENTS
Supplies shipped to Buyer, substantially in advance of the delivery
schedule herein, may at Buyer's option be returned to Seller at
Seller's expense subject to reshipment to Buyer at Seller's expense in
accordance with the delivery schedule herein proscribed. Advance
shipments, if retained will be subject to payment conforming to delivery
schedules herein. Material shipped in excess of quantity order, if
returned, will be returned at Seller's expense.
10. CONTRACT COMPLIANCE
a) The required test and/or inspection reports resulting from compliance
with this Order will be maintained on file and be made available for
review by Buyer's representative or Government inspectors (if
applicable) at any reasonable time.
b) Unless prior written approval of Buyer is obtained, Seller shall make
no substitution of material supplied by Buyer under this Order.
11. BUYER PROPERTY
All material specifications, drawings or other documents and data
furnished to Seller and all tools, dies, molds, jigs, fixtures,
patterns, machinery, special test equipment, special tooling, including
plates, negatives, and/or film used for the purpose of reproduction,
which have been furnished will be delivered in good condition (normal
wear and tear excepted) to Buyer, f.o.b. the Seller's plant, immediately
upon request and Seller shall be liable for all damage, loss or casualty
to such property until so returned to Buyer. Seller warrants that said
tools, die, molds, jigs, fixtures, and documents or data furnished, will
not be used for any work or for the production of any material or parts
other than for Buyer without its written permission, except to the
extent authorized by the Government by a direct contract with Seller for
the manufacture of products for direct sale to the Government and to the
extent that such use will not interfere with Seller's performance of
this or other orders from Buyer in effect at the time the Seller enters
into such direct contact with the Government. Upon prior written notice
to Buyer of such Government authorization and the contract number, the
Seller shall have the right to use the items mentioned herein which the
Government owns or has the right to use or the right to authorize others
to use.
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12. LABOR DISPUTES
Whenever an actual or potential labor dispute, delays or threatens to
delay, the performance of this Order, Seller shall immediately give
notice thereof. Such notice shall be confirmed in writing and shall
contain all information relevant to the dispute.
13. PRECIOUS METALS
This Order is fixed price; therefore, in no event shall Seller increase
the prices due to alleged increases in precious metals.
14. INDEMNIFICATION
In the event Seller, its officers, employees, agents or subcontractors
at any time enter premises occupied by or under the control of Buyer or
third parties in the performance of this order, Seller shall defend,
hold harmless Buyer, its officers, employees and agents from any claim,
suit, loss, cost, damage, expense to any person including Seller's
employees, of whatsoever nature or kind proximately caused by the
negligence actions or omissions of Seller, its officers, employees,
agents, or subcontractors at any tier. Seller shall take all precautions
necessary, especial or otherwise, and shall be responsible for
compliance with all local, state and federal safety laws in the
performance of work hereunder. Without in any way limiting the foregoing
undertakings, Seller and its subcontractors at any time shall maintain
public liability and property damage insurance in reasonable limits
covering the obligations set forth and shall maintain proper Workmen's
Comprehensive Insurance covering all employees performing this order.
15. QUALITY CONTROL AND INSPECTION
a) Seller shall provide and maintain a Quality Control system in
accordance with the subcontract requirements. During performance of this
order Seller's Quality Control, Inspection System and Manufacturing
processes are subject to reasonable review, verification and analysis by
Buyer and if a Government prime contract number or other Government
designation appears on the face of this order an authorized Government
representative(s).
b) All supplies ordered may be subject to (i) inspection, verification,
or testing during the period of manufacturing; (ii) inspection or
verification prior to shipment, and (iii) final inspection,
notwithstanding any prior payment or inspection or acceptance. Such
inspection and verification rights shall extend to the Government, if a
Government prime contract number or other Government designation appears
on the face of this order. If any inspection or test is made on the
premises of the Buyer or its lower-tier suppliers, Seller shall, without
additional charge to Buyer, provide and shall require its lower-tier
suppliers to provide all reasonable facilities and assistance for the
safety and convenience of Buyer and Government inspectors in the
performance of their duties.
c) Buyer may reject supplies which do not conform to applicable
specifications, drawings, samples or descriptions or which are defective
in material, workmanship or design (unless such design is Buyer's detail
design). Seller shall notify Buyer of past rejections of all retendered
supplies. Buyer shall have reasonable access to Seller's facilities for
the purpose of determining progress of work in process for this order.
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Subcontract: S114TP
16. INTEREST
Buyer shall not be obligated for payment of interest on any claim of
Seller hereunder.
17. EQUAL OPPORTUNITY
The Equal Employment Opportunity clause in Section 202, of Executive
Order (E.O.) 11246 as amended, and the implementation rules and
regulations in Title 41, Code of Federal Regulations, part 60 are
incorporated herein by references, unless this order is exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant
to Section 204 of E.O. 11246 or provisions of any superseding E.O. As
used in said clause, "Contractor" means Seller. Seller agrees to provide
Buyer with an executed Equal Employment Opportunity Certificate
indicating Seller's compliance or exempt status, on an annual basis when
requested by Buyer. In the event Seller has a current Certificate on
file with Buyer, it is incorporated herein by reference and shall be
valid until the next annual request by Buyer.
18. AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA
The Affirmative Action clause of Title 41, Code of Federal Regulations,
Part 60, Subsection 250.4 and the implementing rules and regulations of
the Department of Labor associated therewith are incorporated herein by
reference unless this order is under $10,000. As used in said clause,
"Contractor" means Seller and "Contract" means this order.
19. AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS
The Affirmative Action clause in Title 41, Code of Federal Regulations,
Part 60, Subsection 7414 and the implementing rules and regulations of
the Department of Labor associated therewith are incorporated herein by
reference unless this order is under $2,500. As used in said clause,
"Contractor" means Seller and "Contract" means this order.
20. CLEAN AIR AND WATER
The Clean Air Act, as amended, 42 U.S.C. 1857 et. seq., the federal
Water Pollution Control Act, as amended, 33 U.S.C. 1251 et. seq.,
Executive Order (E.O.) 11738 dated September 10, 1973, as amended, and
Environmental Protection Agency (EPA) Regulation 40 C.F.R. Part 15, as
amended, are incorporated herein by references unless this order is for
$100,000 or less or is otherwise exempt. Unless otherwise exempt, if
this order has been awarded by Buyer in reliance upon a prior Clean Air
and Water Certification executed by Seller and submitted to Buyer, said
Certification is by this reference herein incorporated in this order.
Seller shall obtain like certifications from his suppliers prior to the
award of nonexempt orders hereunder and shall incorporate the Clean Air
and Water clause and the Certification requirements in such orders.
21. OFFSET CREDIT
To the extent that any work in performance of this order is actually
done by or for the Seller, or any materials, components, parts,
subassemblies, assemblies, subsystems, or systems are acquired by or for
the Seller outside of the United States, it is agreed that Buyer shall
alone be entitled to claim any and all offset credit or other
countertrade benefit in its own name and Seller shall not assert any
claim to such benefit.
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Subcontract: S114TP
22. TAXES
Except as may be otherwise provided herein, the prices established
herein include all applicable Federal, State, and Local taxes in effect on the
date of this order.
23. INVOICE AND PAYMENT
A separate invoice shall be issued for each shipment. Unless otherwise
specified in this order, no invoice shall be issued prior to shipment of goods
and no payment shall be made prior to receipt and acceptance of goods and the
receipt of a correct invoice. Payment due dates, including discount periods,
will be computed from date of acceptance of goods and shipment or date of
receipt of correct invoice, whichever is later. Unless freight and other
charges are itemized, any discount taken will be on the full amount of the
invoice. Any payments for supplies delivered prior to final acceptance of the
supplies, shall not constitute final acceptance of the supplies.
24. ADDITIONAL FAR/DFAR CLAUSES
The following FAR/DFAR Clauses are incorporated into this order by
reference, with the same force and effect as if given in full text. Unless
specified otherwise, "Contract" means this order; "Contractor" means the Seller
under this order; and "Subcontractor" means the Seller's subcontractors. The
full text of any clause may be obtained upon request of the Buyer's
Subcontracts Department. Notwithstanding any provision herein to the contrary,
access to ViaSat's books and records shall be limited to the U.S. Government.
a) FAR CLAUSE TITLE
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52.203-01 OFFICIALS NOT TO BENEFIT (APR 1984)
52.203-03 GRATUITIES (APR 1984)
52.203-05 COVENANT AGAINST CONTINGENT FEES (APR 1984)
52.203-06 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT
(JUL 1985)
52.203-07 ANTI-KICKBACK PROCEDURES (OCT 1988) IN WHICH CLAUSE
(c)(1) IS DELETED
52.203-08 REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY
(NOV 1990)
52.203-09 REQUIREMENT FOR CERTIFICATE OF PROCUREMENT
INTEGRITY-MODIFICATION (NOV 1990)
52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL
TRANSACTIONS (JAN 1990)
52.204-02 SECURITY REQUIREMENTS (APR 1984)
ALT I & ALT II
52.208-01 REQUIRED SOURCES FOR JEWEL BEARINGS AND RELATED ITEMS
(APR 1984)
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52.210-05 NEW MATERIAL (APR 1984) "CONTRACTING OFFICER" MEANS BUYER
AND "GOVERNMENT" MEANS BUYER IN THE LAST TWO SENTENCES
52.210-07 USED OR RECONDITIONED MATERIAL, RESIDUAL INVENTORY AND FORMER
GOVERNMENT SURPLUS PROPERTY (APR 1984)
52.212-08 DEFENSE PRIORITY AND ALLOCATION REQUIREMENTS (SEP 1990)
52.212-13 STOP-WORK ORDER (AUG 1989)
52.212-15 GOVERNMENT DELAY OF WORK (APR 1984)
52.215-01 EXAMINATION OF RECORDS BY COMPTROLLER GENERAL (FEB 1990)
52.215-02 AUDIT -- NEGOTIATION (FEB 1993)
52.215-25 SUBCONTRACTOR COST OR PRICING DATA -- MODIFICATIONS
(DEC 1991)
52.215-26 INTEGRITY OF UNIT PRICES (APR 1991)
52.216-21 REQUIREMENTS (APR 1984)
52.219-08 UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL
DISADVANTAGED BUSINESS CONCERNS (FEB 1990)
52.219-09 SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS
SUBCONTRACTING PLAN (JAN 1991) "CONTRACTING OFFICER" MEANS
BUYER IN THE FIRST SENTENCE OF PARA. (c)
52.220-03 UTILIZATION OF LABOR SURPLUS AREA CONCERNS (APR 1984)
52.220-04 LABOR SURPLUS AREA SUBCONTRACTING PROGRAM (APR 1984)
52.222-01 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (APR 1984)
"CONTRACTING OFFICER" SHALL MEAN BUYER
52.222-04 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME
COMPENSATION (MAR 1986) ONLY PARA (a) THROUGH (d) APPLY.
BUYER MAY WITHHOLD OR RECOVER FROM SELLER SUCH SUMS AS
THE CONTRACTING OFFICER WITHHOLDS OR RECOVERS FROM BUYER
BECAUSE OF LIABILITIES OF SELLER OR ITS SUBCONTRACTORS
UNDER THIS CLAUSE
52.222-20 WALSH-HEALEY PUBLIC CONTRACTS ACT (APR 1984)
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52.222-26 EQUAL OPPORTUNITY (APR 1984)
52.222-35 AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND VIETNAM ERA
VETERANS (APR 1984)
52.222-36 AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (APR 1984)
52.222-37 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS AND VETERANS OF
THE VIETNAM ERA (JAN 1988)
52.223-02 CLEAN AIR AND WATER (APR 1984)
52.223-03 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA
(NOV 1991)
52.223-06 DRUG FREE WORKPLACE (JUL 1990)
52.225-10 DUTY FREE ENTRY (APR 1984) "CONTRACTING OFFICER" MEANS BUYER.
IN THE LAST SENTENCE OF PARA (h) "THE CONTRACT" MEANS THE "PRIME
CONTRACT"
52.225-11 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (MAY 1992)
52.227-01 AUTHORIZATION AND CONSENT (APR 1984)
52.227-02 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT
INFRINGEMENT (APR 1984)
52.227-09 REFUND OF ROYALTIES (APR 1984)
52.227-10 FILING OF PATENT APPLICATIONS--CLASSIFIED SUBJECT MATTER
(APR 1984)
52.227-11 PATENT RIGHTS--RETENTION BY THE CONTRACTOR (SHORT FORM)
(JUN 1989)
52.229-03 FEDERAL, STATE, AND LOCAL TAXES (JAN 1991)
52.232-01 PAYMENTS (APR 1984)
52.232-16 PROGRESS PAYMENTS (AUG 1987)
ALT 1 (SMALL BUSINESS)
52.233-01 DISPUTES (DEC 1991)
52.243-01 CHANGES--FIXED PRICE (AUG 1987)
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52.243-07 NOTIFICATION OF CHANGES (APR 1984). INSERT 10 CALENDAR
DAYS IN PARA (b) AND (d)
52.245-01 PROPERTY RECORDS (APR 1984)
52.245-02 GOVERNMENT PROPERTY (FIXED PRICE CONTRACTS) (DEC 1989)
52.246-02 INSPECTION OF SUPPLIES - FIXED PRICE (JUL 1985) F.O.B. -
VIASAT FACILITY
52.246-15 CERTIFICATE OF CONFORMANCE (APR 1984)
52.246-16 RESPONSIBILITY FOR SUPPLIES (APR 1984)
52.246-23 LIMITATION OF LIABILITY (APR 1984)
52.249-02 TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED
PRICE) (APR 1984). THE RIGHT TO TERMINATE FOR
CONVENIENCE SHALL BE LIMITED TO THE FOLLOWING
CONDITIONS: A) THE GOVERNMENT TERMINATES CONTRACT
DAAB07-94-D-A010 FOR CONVENIENCE, OR B) MAGNAVOX HAS
ORDERED MORE UNITS THAN THE QUANTITY THEN ON ORDER UNDER
CONTRACT DAAB07-94-D-A010 AND DESIRES TO TERMINATE ALL
OR A PORTION OF THE EXCESS QUANTITY. SHOULD A
TERMINATION FOR CONVENIENCE BE ISSUED UNDER CIRCUMSTANCE
A) ABOVE, THE SUBCONTRACTOR SHALL SUBMIT A TERMINATION
SETTLEMENT PROPOSAL IN ACCORDANCE WITH FAR 52.249-02.
SHOULD A TERMINATION FOR CONVENIENCE BE ISSUED UNDER
CIRCUMSTANCE B) ABOVE, THE SUBCONTRACTOR MAY SUBMIT A
TERMINATION SETTLEMENT PROPOSAL IN ACCORDANCE WITH FAR
52.249-02 AND THE QUANTITY DELIVERED AND THE REMAINING
UNITS ON ORDER FOR EACH DELIVERY ORDER IMPACTED, WILL BE
REPRICED IN ACCORDANCE WITH THE RANGE QUANTITY UNIT
PRICING IN SECTION B.1 TO REFLECT THE HIGHER UNIT PRICE
ASSOCIATED WITH THE LOWERED QUANTITY.
52.249-08 DEFAULT (FIXED PRICE SUPPLY AND SERVICE) (APR 84)
52.252-02 CLAUSES INCORPORATED BY REFERENCE (JUN 1988)
b) DFAR CLAUSES TITLE
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252.203-7000 STATUTORY PROHIBITIONS ON COMPENSATION TO FORMER DOD
EMPLOYEES (DEC 1991)
252.203-7001 SPECIAL PROHIBITION ON EMPLOYMENT (DEC 1991)
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252.203-7003 PROHIBITION AGAINST RETALIATORY PERSONNEL ACTIONS (APR 1992)
252.204-7002 PAYMENT OF SUBLINE ITEMS NOT SEPARATELY PRICED (DEC 1991)
252.204-7003 CONTROL OF GOVERNMENT PERSONNEL WORK PRODUCT (APR 1992)
252.225-7001 BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (DEC 1991)
252.225-7009 DUTY-FREE ENTRY-QUALIFIED COUNTRY END PRODUCTS AND SUPPLIES
(DEC 1991)
252.225-7026 REPORTING OF OVERSEAS SUBCONTRACTS (DEC 1991)
252.225-7031 SECONDARY ARAB BOYCOTT OF ISRAEL (JUN 1992)
252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) ALT II
252.227-7018 RESTRICTIVE MARKINGS ON TECHNICAL DATA (OCT 1988)
252.227-7019 IDENTIFICATION OF RESTRICTED RIGHTS - COMPUTER SOFTWARE
(DEC 1991)
252.227-7027 DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE
(APR 1988)
252.227-7029 IDENTIFICATION OF TECHNICAL DATA (APR 1988)
252.227-7030 TECHNICAL DATA - WITHHOLDING OF PAYMENT (OCT 1988)
252.227-7031 DATA REQUIREMENTS (OCT 1988)
252.227-7036 CERTIFICATION OF TECHNICAL DATA CONFORMITY (MAY 1987)
252.227-7037 VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (APR 1988)
252.231-7000 SUPPLEMENTAL COST PRINCIPLES (DEC 1991)
252.232-7004 DOD PROGRESS PAYMENT RATES (DEC 1991)
252.233-7000 CERTIFICATION OF CLAIMS AND REQUESTS FOR ADJUSTMENT OR RELIEF
(DEC 1991)
252.243-7001 PRICING OF CONTRACT MODIFICATIONS (DEC 1991)
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