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EXHIBIT 10.76
STS-95 USER CONTRACT
(B)
This STS-95 User Contract (B) ("Contract") is made this 18th day of
March, 1998, between SPACEHAB, Incorporated ("SHI"), a Washington state
corporation with its principal office located in Vienna, Virginia and Mitsubishi
Corporation, with its principal office located in Tokyo, Japan ("MC"), as
contractor to the National Space Development Agency of Japan ("NASDA",
collectively "BUYER").
WHEREAS MC desires to procure SPACEHAB pressurized module services
("SPACEHAB" or "Module") and retain SHI to act as the carrier and interface
between the U.S. National Aeronautics and Space Administration's ("NASA") Space
Shuttle fleet and the experiments listed in Exhibit A aboard a SPACEHAB Module
Mission currently manifested as STS-95.
WHEREAS SHI desires to supply to MC such services and to act as the
carrier and interface between the NASA Space Shuttle fleet and the experiments
listed in Exhibit A aboard a SPACEHAB Module Mission currently manifested as
STS-95 ("Mission"); and
WHEREAS SHI must immediately begin to perform certain tasks associated
with the analytical and physical integration of the Exhibit A experiments into
the SPACEHAB Module in order to complete these tasks prior to the anticipated
launch date;
WHEREAS, the parties desire to perform their respective obligations
necessary to fully achieve these desires pursuant to two sequential contracts (A
and B); and
WHEREAS MC, NASDA, and SPACEHAB have mutually agreed to the Experiment
Chargeable Mass policy presented in the Exhibit B table.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties agree as follows:
1. STATEMENT OF WORK
SHI will provide, at the times and locations set forth therein and
pursuant to the terms and conditions of this Contract, the supplies and
services described in the Statement of Work ("SOW") in Exhibit C (b)
for the payloads listed in Exhibit A (both exhibits incorporated herein
by reference) as follows: VFEU, BRIC, OCC, Oceaneering/SPACEHAB
Refrigerator/Freezer (OSRF), and Camcorder/Microcam/StillCam. The OCC
experiment support hardware will be co-located with the 3-Dimensional
Microgravity Accelerometer (3-DMA) and the Japanese United States
Thermal Sciences Acceleration Project (JUSTSAP) supplied by the
University of Alabama - Huntsville, Consortium for Materials
Development in Space. There is no charge to MC/NASDA for co-location of
this hardware under this contract.
2. PRICE AND TERMS OF PAYMENT
MC shall pay SHI a fixed price of 1997 US$7,620,000 at the time set
forth below. Included in this price is the lease of the OSRF and the
associated integration and operations services performed by Oceaneering
Space Systems of Houston, Texas.
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- 97US$ 7,620,000.00 March 31, 1998
Total $7,620,000.00
The total actual Chargeable Mass (reference Exhibit B) for all
experiments in Exhibit A and any supporting flight hardware shall be
fixed at 303.572 kg.
3. PAYMENT TERMS AND CONDITIONS
Payment shall be made in accordance with Paragraph 2 above. In the
event MC requests and receives services not specified as Standard
Services in the Statement of Work, Exhibit C(b), SHI shall send a Final
Billing to MC as promptly as possible after completion of the last
service provided by SHI under this Contract. The Final Billing will
address additional payment requirements, if any, from MC. If an
additional MC payment is required, such payment shall be due 60 days
after the billing date of the Final Billing.
4. MISSION DELAYS
In the event STS-95 is delayed, suspended, or postponed, there may be
additional charges to MC as specified in the following circumstances:
a. Delay caused by NASA
MC pays only additional service costs, if any, required/provided
by NASA and/or SHI.
b. Delay caused by SHI
MC pays only additional service costs, if any, required/provided
by NASA.
c. Delay caused by MC or NASDA
MC pays any additional NASA costs charged to SHI which may be
required or caused by any delay, suspension or postponement of
the launch in excess of the 72 hours allowable delay for which
NASA does not charge. MC pays for any additional costs incurred
by SHI for services provided by NASA and/or SHI.
5. OPTIONAL SERVICES
There are currently no optional services priced under this Contract.
Prices for any optional services will be negotiated on an individual
basis and will be in addition to the price as set forth in Section 2
above.
6. APPLICABILITY OF NASA/SHI SPACE SHUTTLE CONTRACTS
SHI and MC acknowledge that performance of the services described in
this Contract and the SOW depends upon the Contract(s) governing NASA's
manifesting and use of the Module for STS-95 ("NASA Contracts"). Any
changes to these NASA/SHI Contract(s) that are imposed by NASA and
which prevent SHI from providing the services described herein shall
not constitute a breach of this Contract by either SHI or MC. In the
event of such changes by NASA, SHI and MC agree to negotiate an
equitable adjustment to this Contract that satisfies both parties as
well as NASA's new requirements. If there are any conflicts between
this Contract and the
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requirements of the NASA Contracts applicable to this Contract, the
NASA Contracts terms and conditions shall take precedence.
7. EXCHANGE OF DOCUMENTATION AND INFORMATION
SHI and BUYER shall exchange all documents and information required for
each party to fulfill its responsibilities under this Contract in
accordance with the November 1997 SPACEHAB/NASDA/MC STS-95
Confidentiality & Nondisclosure Contract.
8. PERMITS AND LICENSES
SHI shall obtain any permit or license that may be required to provide
the services to be furnished under this Contract. MC will be
responsible for obtaining any permit or license that may be required to
perform an activity unique to the Exhibit A experiments that is not
included in the foregoing, such as tests involving use of radioactive
materials or particular requirements of MC's own government(s), or
governmental authorities outside the United States.
9. ALLOCATION OF CERTAIN RISKS AND LIMITATION OF LIABILITY
a. Insurance Coverage In Lieu of NASA FAR Supplement Cross-Waiver
SHI agrees to purchase indemnification insurance covering
participants who otherwise would have been covered by the cross
waiver provisions set forth in the NASA FAR Supplement in the
event MC or NASDA were materially damaged by one or more of such
participants during the payload processing activities or STS
Operations.
b. Risk of Patent Infringement
(i) SHI agrees to indemnify MC, its officers, employees and
agents against any United States Patent infringement
costs (including, but not limited to, any judgment
against MC by a court of competent jurisdiction,
reasonable administrative and litigation costs, and
settlement payments made as a result of an
administrative claim) incurred by MC which are
attributable to products, processes or articles of
manufacture used in the facilities and Services to be
furnished to MC by SHI hereunder.
(ii) MC agrees to indemnify SHI and NASA, their officers,
employees and agents against any United States Patent
infringement costs (including, but not limited to,
judgment against SHI by a court of competent
jurisdiction, reasonable administrative and litigation
costs, and settlement payments made as a result of an
administration claim) incurred by SHI and/or NASA which
are attributable to products, processes or articles of
manufacture used in Exhibit A experiments and any
supporting equipment and facilities brought to the SHI
SPPF by MC or MC's contractors or subcontractors and
any activity performed at SHI or NASA facilities by MC
or MC's contractors or subcontractors and any activity
performed at SHI or NASA facilities by MC or MC's
contractors or subcontractors.
c. Limitation of SHI and MC Liability
Notwithstanding any other provisions herein, to the extent that
a risk of damage is not dealt with expressly in this Contract,
SHI's and MC's liability under this Contract, whether or
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not arising as a result of an alleged breach of this Contract,
shall be limited to direct damages only and shall not include
any loss of revenue, profits or other indirect or consequential
damages.
10. ASSISTANCE WITH THIRD PARTY CLAIMS
In the event a third party claim is asserted against SHI or MC as a
result of patent infringement, use of proprietary data, or damage,
including claims of their respective contractors or subcontractors,
arising from or in connection with the Services provided by SHI under
this Contract, SHI and MC each agree to give prompt notice to the other
of any such claim and agree to provide each other with any assistance
practicable in the defense against such claim. If a claim asserted
against one party is a claim under this Contract, the party who has
agreed to indemnify shall have the right to intervene and defend, the
right to control litigation of, and the right to determine the
appropriateness of any settlement related to such claim.
11. WARRANTIES
SHI makes no warranties of any kind, express or implied, including any
implied warranty of merchantability or fitness for a particular
purpose.
12. PUBLICITY RELATING TO CONTRACT
In cases where one Party intends to use results obtained from this
Contract or advertise his role in this Contract, it shall first request
the other Party for its prior written approval, which shall not be
unreasonably withheld.
13. APPLICABLE LAW
The Contract shall be governed by the laws of the State of Virginia.
14. ARBITRATION/DISPUTES
Disputes arising out of the interpretation or execution of this
Contract which cannot be resolved by negotiation shall, at the request
of either Party, (after giving 30 days notice to the other Party) be
submitted to arbitration. The arbitration tribunal shall sit in
Washington, DC. Disputes shall be finally settled in accordance with
the Rules of Conciliation and Arbitration of the International Chamber
of Commerce by one or more arbitrators designated in conformity with
those Rules. The decision to submit a dispute shall not excuse either
party from the timely performance of its obligations hereunder which
are not the subject matter of the dispute. Further, if the lack of
resolution of the matter in dispute will adversely impact the timely
completion of preparation for launch activities, MC and SHI will
perform the matter in dispute in the manner determined by SHI, within
the framework of this Contract and without prejudice to the final
resolution of the matter in dispute.
15. TERMINATION OF SERVICES
Both parties have the right to terminate this Contract pursuant to the
following conditions only:
a. SHI may terminate this Contract:
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(i) In the event NASDA delivers any payload described in the
SOW so late beyond the mutually agreed upon delivery date
that SHI, in its sole reasonable judgment, is unable to
process such payload in time to meet the launch schedule,
SHI will terminate this Contract and shall retain all
payments made by MC to the date of termination, and MC is
further liable for all costs incurred by SHI as a result
of such NASDA failure, or
(ii) In the event of a material breach by MC which MC fails to
cure within a reasonable time after written notice
received from SHI (or immediately upon a non-curable
breach), in which case SHI shall retain all payments made
to the date of the termination, and MC is further liable
for all costs incurred by SHI resulting from MC's breach
of the Contract or,
(iii) As a result of any actions or inactions by NASA which
prevent the manifesting of the Exhibit A experiments on
STS-95, in which case SHI shall be entitled to all
payments hereunder received to the date of termination,
plus the Integration and Optional Services (if any) actual
costs incurred up to the time of termination, as well as
all termination charges which may be imposed by third
parties (such as NASA or SHI subcontractors).
b. MC may terminate this Contract:
(ii) Without cause at any time before installation of the
Exhibit A experiments into the SHI module upon sufficient
written notification to SHI of such intent, in which case
MC shall be liable for and SHI shall retain all payments
hereunder received up to the date of termination, plus the
Integration and Optional Services (if any) actual costs
incurred up to the time of termination, as well as all
termination charges which may be imposed by third parties
(such as NASA or SHI subcontractors), or,
(ii) In the event of material breach by SHI which SHI fails to
cure in a reasonable time after written notice of such
material breach is received from MC, in which case MC will
be relieved from making any further payments to SHI
subsequent to the material breach hereof.
c. Termination In Special Cases:
MC may terminate this Contract by giving written notice with
immediate effect in any of the following events:
(i) If SHI becomes insolvent or if its financial position is
such that within the framework of its national law, legal
action leading towards bankruptcy may be taken against it
by its creditors;
(ii) If SHI resorts to fraudulent practices in connection with
the contract, especially by deceit concerning the nature,
quality or quantity of the supplies, and the methods or
processes of manufacture employed or by the giving or
offering of gifts or remuneration for the purpose of
bribery to any person in the employ of NASDA or acting on
its behalf, irrespective of whether such bribes or
remuneration are made on the initiative of SHI or
otherwise.
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16. ASSIGNMENTS
No party shall assign to another person or entity any part of its
rights under this Agreement, including but not limited to rights for
services related to scheduled launches, unless otherwise expressly
agreed to by the other party in writing, or as may be required pursuant
to law.
17. NOTICES
All notices, requests, demands, and other communication hereunder shall
be in writing and shall be either (1) personally delivered, (2) sent by
mail or reputable overnight delivery service, or (3) transmitted by
facsimile machine as follows:
To SHI: Ms. Nelda Wilbanks
Contracts Administrator
SPACEHAB, Inc.
1595 Spring Hill Road, Suite 360
Vienna, VA 22182 USA
To MC: Mr. Kazushi Ochi
Manager, Space Systems Unit
Mitsubishi Corporation
2-6-3 Marunouchi, Chiyoda-ku
Tokyo, Japan 100-86
The effective date of each notice, demand, request or other
communication shall be deemed to be: (1) the date of receipt if
delivered personally or by mail or overnight delivery service, or (2)
the date of transmission if by facsimile. Either party may change its
address or designee for purposes hereof by informing the other party in
writing of such action and the effective date of such change.
18. FORCE MAJEURE
Neither party shall be liable for delays or breaches hereof resulting
from events or acts beyond the control of such party, including but not
limited to acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulations, and natural disasters. Upon the
occurrence of such event, the party whose performance is affected shall
use reasonable efforts to notify the other party of the nature and
extent of any such condition and negotiate its affects.
19. COMPLETE CONTRACT
This Contract constitutes the complete Contract and understanding with
respect to the subject matter hereof between the parties.
Mitsubishi Corporation SPACEHAB, Inc.
By: ________________________________ By: __________________________
Name: ______________________________ Name: Nelda Wilbanks
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Title: _____________________________ Title: Contracts Administrator
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EXHIBIT A
EXPERIMENT LIST
1. NASDA'S VESTIBULAR FUNCTION EXPERIMENT UNIT (VFEU)
2. NASDA'S BIOLOGICAL RESEARCH IN A CANISTER (BRIC)
3. NASDA'S ORGANIC CRYSTAL CHAMBER (OCC)*
4. OCEANEERING/SPACEHAB REFRIGERATOR/FREEZER
5. CAMCORDER/MICROCAM/STILLCAM
* THE OCC EXPERIMENT SUPPORT HARDWARE IS CO-LOCATED WITH THE 3-DIMENSIONAL
MICROGRAVITY ACCELEROMETER (3-DMA) AND THE JAPANESE UNITED STATES THERMAL
SCIENCES ACCELERATION PROJECT (JUSTSAP). HOWEVER, THERE IS NO CHARGE TO MC/NASDA
FOR THE USE OF THIS HARDWARE, SUPPLIED BY THE UNIVERSITY OF ALABAMA -
HUNTSVILLE, CONSORTIUM FOR MATERIALS DEVELOPMENT IN SPACE.
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